Petition: Stop Mott MacDonald profiting from community destruction

Resident have started a new petition asking the international employee-owned firm Mott MacDonald to remove themselves from Lambeth council’s project proposing to demolish Cressingham Gardens.

To sign the petition on Change.org, click here

And share the link: http://bit.ly/MottMacDonaldCressinghamPetition

Petition:

We are asking Mott MacDonald, an employee-owned company, to remove themselves from the Cressingham Gardens regeneration project led by Lambeth council.   Mott MacDonald takes pride in their ethics and we believe that Lambeth’s proposed regeneration of Cressingham Gardens goes against their ethics policy – both in spirit and letter.
As written in Mott MacDonald’s ethics policy:
“We [Mott MacDonald] seek to be good corporate citizens, to provide local employment and to contribute to the well-being of communities where we work.”
This project will not contribute to the well-being of the Cressingham Gardens community.  Surveys show that the clear majority of residents do NOT want their community and homes demolished.  It is a very supportive community that has a very high proportion of households that have a vulnerable family member (at least 40%) and is extremely diverse (65% BME).  The demolition of the community will destroy the support networks and many families will be forced to leave the area as they will simply not be able to afford the new housing.   It will also have devastating impacts on residents.  Here is one such example (“Mary’s story”):

http://bit.ly/MaryCressingham
To come back, residents are being expected to give up legal rights and to pay more (e.g. tenants have to give up their secure tenancy and accept an assured tenancy with higher rents; existing homeowners are expected to find approx £200k extra cash to remain homeowners otherwise they have to become tenants in shared ownership or rental arrangements). Even the council’s own Equalities Impact Assessment states that the majority of the new homes will only be affordable to those on higher incomes or with capital assets.  The median household income in the area is a mere £29k pa before tax, but the council wants to charge market rent of £39k pa for a 4 bed apartment.
Residents have taken the council to the High Court twice to hold it to account for financial manipulations. The hearings revealed facts that should be of grave concern to any organisation wishing to partner with the council to redevelop the estate.
Cressingham Gardens is worth saving, not demolishing.  Historic England strongly suggested giving Cressingham Gardens conservation area status for its local architectural importance, but Lambeth council have refused to even consider the recommendation.  Cressingham Gardens is also supported by Save Britain’s Heritage.

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Cressingham’s recommendations to the Mayor of London

Sadiq Khan, Mayor of London, published his purported “Good Practice Guide to Estate Regeneration” for consultation.   The residents feel that the document fell far short from its lofty title.  The following was submitted today to the Mayor of London:

Recommendations to the Mayor of London

  1. No discrimination against estates Guidelines to be applied to all residential regeneration and not just estate regeneration.  Estates should not be singled out and discriminated against for regeneration compared to other residential areas.
  2. No increase in local housing costs Regeneration requiring enforced removal of residents from their homes to make way for redevelopment must not result in higher local housing costs.
  3. Full disclosure & transparency There must be full disclosure and transparency during the process in a timely manner.  “Commercial sensitivity” not to be used as an excuse not to disclose.
  4. Evidence & fact based All claims made by local authorities/developers to be supported by evidence and facts that are to be made available for scrutiny by residents.
  5. Viability to include full impact on residents Viability/options assessments must include the full impact on residents.  That is, viability/options assessments should not just consider the viability from a local authority/developer perspective, but also the full costs and benefits to the residents impacted
  6. Conclusive & binding ballot There must be a conclusive and binding ballot of residents held prior to the regeneration being approved and/or planning permission being sought, whichever is the earliest date. The ballot and materials to be written and carried out by an independent organisation.  The materials accompanying the ballot must present all the relevant facts including funding, tenure rights, RTB etc.  Any subsequent approval to be deemed revoked if it later transpires that any significant element has changed or been withdrawn.
  7. No worse off Existing residents should not be worse off in any manner – financially, quality of housing, access to local services, career/education impacts etc
  8. Honest timetables Realistic and honest timetables must be published.  Changes to the timetable must be the exception and where it occurs must be robustly argued why the change is necessary.
  9. Enforcement mechansisms There must be a mechanism to enforce the guidelines and provide an effective and cost-free route for residents to complain and seek redress if there is a breach of the guidelines.  An independent body should be authorised to determine if all options have been exhausted.
  10. Remove councils’ conflicts of interests If the local authority is either the landlord or a partner in the regeneration beyond its general role as a local authority, then a different organisation should be required to consider any planning application in order to avoid all conflicts of interest.
  11. People’s Plans to be supported If residents would like to create their own alternative ‘People’s Plan,’ financial support  to be provided to the same level as budgeted by the landlord/developer to develop their proposal.  The financial support is to allow residents to engage their own technical experts.
  12. Retain community The landlord must aim to retain at least 80% of the community, otherwise a punitive fine is payable.  It is insufficient to say that residents have ‘opportunities’ to stay, when in fact what is being offered is so unattractive very little of the community is retained.
  13. No loss of legal rights Returning residents must as a minimum have no loss of legal rights, irrespective of their legal tenure
  14. Private rental residents to be protected If a private rental household has lived for more than 2 years on an estate and their homes is to be demolished, the council must be required at a minimum to ensure adequate rehousing at same rental level in the same area.  If the household is eligible for social housing, then an appropriate social home to be provided under any regeneration program with full legal rights for the tenure.
  15. Temporary accommodation households to be converted to secure tenancies If a household is living for more than 1 year in a home converted to temporary accommodation due to a proposed demolition/regeneration program, the tenancy to be automatically converted to a secure council tenancy.

[Signed by 75 residents]

 

Residents vow to fight on after high court decision

Residents of Cressingham Gardens estate have vowed to ‘fight on’ to save their homes, despite losing a high court battle to overturn Lambeth council’s vote.

Mr Justice David Holgate announced today (Wed) that he would not quash the decision to demolish the celebrated estate near Brixton, south London, following a judicial review last month.

The result is a disappointment for residents, particularly as they won a similar fight this time last year, in which a judge found Lambeth had unlawfully withdrawn refurbishment options.

The council re-ran the consultation with repairs back on the table, but in March this year elected to go with ‘Option 5’ and flatten all 306 homes, despite overwhelming resident opposition.

The available evidence shows that after stripping people of their homes, Lambeth will force up living costs by hiking council rents and upping the cost of purchasing a leasehold property by between £200k and £300k per home.

The residents’ People’s Plan, a community-led alternative to demolition, would protect current affordable living costs, increase the number of council homes, and do so at a fraction of the cost of Lambeth’s proposal.

This year’s judicial review coincides with London mayor Sadiq Khan’s launch of a consultation on his ‘Homes for Londoners: Draft Good Practice Guide to Estate Regeneration’ which suggests demolition only as a last resort.

The claimant, Cressingham Gardens resident Andy Plant, said, ‘This is obviously not the Christmas present we’d hoped for.

‘Of course we had everything crossed for a brilliant win like last year. But it’s not all bad news, as we still have everything to fight for, and will fight on to save our homes and community.

‘We are hoping to appeal the judgment.

‘This case has forced the council to admit some very alarming facts, which we will be able to add to our armoury for other future challenges.

‘The facts we’ve exposed should serve as a call to action for Lambeth residents, and particularly people living on estates in this borough, who are worried about what its politicians are up to in their name.

‘Labour councils across London are citing the housing crisis as a reason to bulldoze council estates, but there is strong evidence that this land-grabbing practice has actually made the problem worse, driving up prices and even making people homeless.

‘Mayor Khan – who depended on his background of growing up on a council estate to bolster his mayoral campaign – should be requiring strict and independent cost-benefit analysis to be carried out before any estate demolitions are given the go-ahead.

‘He should not be watering down his pledges out of fear of standing up to his friends in powerful Labour-dominated councils.’

Those closely watching the mayor’s consultation, believe that an election pledge to make resident support key to any demolition, has been diluted.

Mr Plant also highlighted how Lambeth’s barrister James Goudie QC had sought to criticise residents by calling them ‘insatiable’.

‘This is actually an admirable quality in terms of calling this local authority to account,’ added Mr Plant.

And, far from upholding ‘Option 5’ as the fantastic solution trumpeted by cabinet member for housing Cllr Matthew Bennett and his colleagues, Mr Goudie ended up demoting Lambeth’s scheme, describing it as the ‘least of the worst of evils’.

During the case, Lambeth admitted facts behind many of the grounds of challenge, including that it failed to account for a £7.5m public subsidy to the redevelopment.

Earlier, officers had insisted the viability calculations had been done properly, before finally confessing, just weeks before the hearing, that development consultants Airey Miller had left out the multi-million pound expense from the financial model.

The revelation was buried in paragraph 21 of a witness statement from Lambeth’s finance director Christina Thompson.

During the November hearing, the judge described the excerpt, which was supposed to clarify the situation, as both ‘incomprehensible’, and part of a ‘delphic [deliberately obscure or ambiguous] witness statement’.

Lawyers for Mr Plant claimed that as a result of the omission, cabinet members were misled about the viability of the £110m scheme when they agreed to go ahead.

A correct calculation would have led to the full demolition option failing Lambeth’s own ‘must achieve criteria’, that had been set out during the consultation with residents, it was claimed.

While Lambeth admitted not including the £7.5m expense, it denied that this had an effect on the viability because, it claimed, the money would be paid back in due course.

The need to tackle the borough’s council housing waiting list has been repeatedly cited by Lambeth as a key motive for demolishing Cressingham Gardens, along with more a general attempt to resolve the ‘housing crisis’.

The community’s regeneration proposal, estimated to cost around £10.9m, would assist by creating up to 37 extra homes at council rent – many more than than the council’s preferred option, which at best promises 27 more such homes.

The council claims its redevelopment, (which would be carried out by Homes for Lambeth, a private company/special purpose vehicle (SPV) being set up by the council to regenerate at least six estates across the borough), would attract investment from private sources.

During the consultation with residents, Lambeth claimed that by contrast, any refurbishment options would be off limits because of the council’s Housing Revenue Account (HRA) borrowing cap.

This argument was strongly contested during the hearing, during which it was revealed how the residents and cabinet members had been supplied with out-of-date financial information, that concealed £48 million of extra borrowing capacity.

David Wolfe, QC, representing Mr Plant, described this as a ‘very significant failure’ of the consultation.

Residents formulated their consultation responses, including the People’s Plan, based on the council’s claim that there was very little debt headroom.

Partly as a result of the misinformation, cabinet members were led to believe that funding the People’s Plan was an impossible prospect, when in fact there was a pot of up to £52 million to draw from, it was claimed.

Following the close of the consultation and therefore, Lambeth moved the goalposts and cited a completely different barrier to funding – it claimed it would not be able to pay off the loan.

During the hearing, the council argued that cabinet members were aware of the new reason when they decided to demolish, a claim which Ms Thompson made in her witness statement.

Data eventually released by the council, suggests that a major factor contributing to the dire condition of the future housing finances, is the regeneration programme itself.

Cressingham resident Gerlinde Gniewosz, a co-author of the People’s Plan along with Mr Plant and others, said in a written court statement that it was now possible ‘to start to understand how the defendant is accounting for the impact of Option 5 [full redevelopment] on the HRA’.

Analysis reveals how the wider regeneration programme promises to strip council coffers of millions of pounds in rental income from council tenanted homes, ‘as the rebuilt homes would no longer belong to the HRA, but rather …Homes for Lambeth’ (the SPV).

Adding to the pressure, the council is still paying off debt generated by the historic build costs of many of its estates, and the rents would no longer be readily available to pay them off.

In addition, according to case papers, the Department of Communities and Local Government (DCLG) has warned that should the council seek to avoid the debt limit, it would be in breach of government policy – that being the policy on the ‘general power of competence’, under the Localism Act 2011.

Around the time of the judicial review, the parliamentary Public Accounts Committee also warned that ‘council taxpayers will end up footing the bill and other services will be under threat’ if local authorities’ risky commercial ventures – reportedly a growing trend – go wrong.

The claimant’s lawyers also argued that Lambeth had breached Mr Plant’s human rights when councillors decided to remove his right to buy, in particular when they failed to properly consider a ‘less intrusive measure’.

Mr Plant, who has lived in Cressingham Gardens for 20 years and hopes to buy his council home in the future, was told he would lose the right along with his secure tenancy.

The court heard how a regeneration consultancy called Local Dialogue, which ran the consultation with the council, made a ‘legally wrong’ claim in a document called ‘Key Guarantees for Tenants’, which stated, ‘The Council proposes to match your current tenancies as closely as possible in order to provide security of tenure.

‘You should note that the right to buy is not available under assured tenancies.’

Mr Wolfe argued, ‘It was correct that the lifetime assured tenancy would not carry with it the statutory right to buy.

‘But that was not the end of the matter, because it would have been (and would be now) entirely open to the council to create an equivalent contractual option to buy (even if, contrary to what Mr Plant would really like, it presses on with regeneration) with the assured tenancy, or as a protected right under a stock transfer to a housing association.

‘But there was no mention of that in the report to the cabinet.’

The council’s approach is in direct conflict with government policy, which was confirmed by the DCLG in a letter to a Cressingham resident.

The DCLG stated, ‘It is important that new council tenants should have access to the Right to Buy and that new homes should not be built by councils which are excluded from the Right to Buy… The Government believes that local authorities should support people to achieve their aspiration for home ownership through the Right to Buy.’

The government has also pledged to extend the scheme to housing associations (which Homes for Lambeth is expected to be), and is currently trialling a system in which replacement homes would be built, before a planned national roll-out.

Meanwhile, in Sadiq Khan’s own borough, Tory-led Wandsworth, residents of one of London’s largest housing regeneration schemes (Winstanley Estate & York Road) were balloted and will retain their council tenancies and associated rights.

Lambeth claimed that the right was not being lost, because tenants can opt to move to a council home elsewhere in the borough, should they wish to retain their secure tenancies.

‘At most, there’s an interference with the right,’ said Mr Goudie, adding, ‘but it’s a limited interference and not an outright removal.’

Mr Goudie claimed that under the present circumstances, ‘interference is in the public interest’, particularly as there is only one tenant’s account weighing against what the council insists is the greater ‘public good’.

Lambeth proposes to spend £110 million on the redevelopment project, to build an extra 148 flats.

The local authority has said that Homes for Lambeth would aim to let 27 of the additional properties at council rent levels, with most of the additional homes to be let or sold at market prices.

Though the judge dismissed Mr Plant’s claim on this point, he agreed Lambeth was obliged to consult on the contractual right to buy, which Lambeth has not yet done.

A £400k ‘weather-tight repairs’ project, which includes the replacement of a number of the estate’s leaking roofs, has been underway on the estate since the summer.

The scope of the investment was reduced from £1.4m following an outcry, after some leaseholders were sent estimated bills of up to £14k, within days of being told their homes would be pulled down.

The DCLG recently put a hold on Southwark council’s regeneration of the Aylesbury Estate, after refusing to confirm a number of Compulsory Purchase Orders which had been issued to leaseholders.

Secretary of state Sajid Javid said Southwark had not done enough to negotiate buy-out costs with the residents to allow them to remain in their community.

Lambeth denied four grounds, that: The council erroneously included £7.5m income which would have otherwise for each of the options resulted in its own preferred demolition option failing its own ‘must achieve criteria’; Misled its own cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of this consultation response; Failed to provide up-to-date data relating to the HRA finances to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and breached Mr Plant’s right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’, contrary to current government policy.

The judge dismissed Mr Plant’s claim on all grounds and ordered the claimant to pay the council’s costs. Mr Plant has 21 days to lodge an appeal.

Full ruling can be read here

Judicial Review 2, Part three

Lambeth council breached a tenant’s human rights when it decided to demolish his home and remove his right to buy, the high court heard.

Claimant Andy Plant, who has lived in Cressingham Gardens for 20 years and hopes to buy his council home in the future, was told he would lose his right to buy along with his secure tenancy.

The local authority made a ‘legally wrong’ statement that if secure tenants wanted to live in the replacement estate, it would not be possible to include this option under the new assured tenancy.

At the same time, the council misinformed secure tenants that the new agreements would be ‘matched as closely as possible’ to the current statutory contract, which carries a number of protected rights, it is said.

In considering the right to buy in the context of the European Convention on Human Rights (ECHR), David Wolfe QC, representing Mr Plant, argued its loss constituted a breach of the claimant’s right to property under Article 1, Protocol 1 of the ECHR.

A decision having that effect, needs to satisfy the ‘requirements of proportionality’, said Mr Wolfe, referring to caselaw (Bank Mellat v HM Treasury) which requires consideration of a number of matters.

These are:

  • Whether the objective of the measure is sufficiently important to justify the limitation of a protected right
  • Whether the measure is rationally connected to the objective
  • Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective
  • Whether the impact of the rights infringement is disproportionate to the likely benefit of the [disputed] measure

Mr Wolfe told the court that the consultation and decision-making did not consider the issue as per the legal requirements.

The barrister said consultation documents were ‘legally wrong’, in that they claimed that the right could not be retained under an assured tenancy, when a contractual option to buy could be made available, but this was not even considered.

The court heard how a regeneration consultancy called Local Dialogue, which ran the consultation with the council, stated in a document called ‘Key Guarantees for Tenants’, ‘The Council proposes to match your current tenancies as closely as possible in order to provide security of tenure.

‘You should note that the right to buy is not available under assured tenancies.’

In his written legal argument, Mr Wolfe said, ‘It was correct that the lifetime assured tenancy would not carry with it the statutory right to buy.

‘But that was not the end of the matter, because it would have been (and would be now) entirely open to the council to create an equivalent contractual option to buy (even if, contrary to what Mr Plant would really like, it presses on with regeneration) with the assured tenancy, or as a protected right under a stock transfer to a housing association.

‘But there was no mention of that in the report to the cabinet.’

The barrister said that the point is also given weight by government policy, which was confirmed by the Department of Communities and Local Government (DCLG) in a letter to a Cressingham resident.

The DCLG stated, ‘It is important that new council tenants should have access to the Right to Buy and that new homes should not be built by councils which are excluded from the Right to Buy… The Government believes that local authorities should support people to achieve their aspiration for home ownership through the Right to Buy.’

The Government has also pledged to extend the scheme to housing associations, and is currently trialling a system in which replacement homes would be built, before a planned national roll-out.

James Goudie, QC, defending Lambeth, claimed that the right was not being lost, because tenants can opt to move to a council home elsewhere in the borough if they wish to retain their secure tenancies.

‘At most, there’s an interference with the right,’ said the barrister, adding, ‘but it’s a limited interference and not an outright removal of the right.’

He added that under the present circumstances, ‘interference is in the public interest’, particularly as there is only one tenant’s account weighing against what the council claims to be the greater ‘public good’.

The council proposes to spend £110 million on the redevelopment project, which involves transferring the existing homes to a private company to be called ‘Homes for Lambeth’, demolishing the existing 306 homes and building an extra 148 flats.

The council has said that Homes for Lambeth would aim to let 27 of the additional properties at council rent levels, with most of the additional homes to be let or sold at market prices.

The resident-led alternative ‘People’s Plan’ would require £10.9 million of investment, and add up to 37 extra homes at council rent levels.

Mr Goudie argued that the matter should be settled on a case-by-case basis via county court possession proceedings, adding, ‘I would not be able to say there wasn’t an issue with another resident, just because Mr Plant had not succeeded.’

The barrister went on to claim that the matter was ‘covered in the consultation’, but admitted, ‘not thoroughly’ adding that Local Dialogue’s account of assured tenancies on this issue, was ‘a little terse’.

Nonetheless, he claimed, ‘there’s nothing amiss.’

Referring to Mr Goudie’s written legal argument, Mr Justice David Holgate said, ‘You’re saying it doesn’t constitute a deprivation of a possession’, because what the council is doing is underwritten as ‘part of the package agreed between the parties’, meaning the terms and conditions of the secure tenancy agreement.

The court heard the statute lists demolition as a justification for repossession and by terminating the secure tenancy, the ‘council was exercising a right’ – meaning that when Mr Plant signed the contract, he submitted to this potential outcome.

Further summarising the barrister’s point, the judge said that the ‘right to buy going is a statutory consequence’ of demolition.

Mr Goudie continued, ‘And, the claimant can’t argue that while it’s compliant with UK law, ‘My A1 P1 right is triggered.’

‘It goes, because the foundation has departed,’ he added.

‘To that extent, it’s a precarious right.

‘It’s secure, subject to the grounds of possession.’

He went on to emphasise that ‘even if’ the convention right is triggered by the current circumstances, ‘any deprivation would be proportionate to the public interest’.

Moving on to Mr Wolfe’s point that the council ‘failed to consider less intrusive options’, Mr Goudie said, ‘Our submission is, the test isn’t whether a less intrusive option has been considered, but whether the intrusion is in the public interest.

‘In our submission, [consideration of a less intrusive option is] not a relevant test in the present context.’

The judge asked, ‘How do you get to that?’

‘My lord,’ replied Mr Goudie, ‘That here, the possibility of a less intrusive measure doesn’t arise, on the facts.’

‘You seem to be saying, it’s not part of the law we’re supposed to apply?,’ remarked the judge.

Mr Goudie said he accepted that a less intrusive measure was a ‘consideration’, but insisted, ‘It’s relevant, but not decisive.’

Regarding government policy on the right to buy, the judge said, ‘The argument made against you is, the authority didn’t take it into account.’

Mr Goudie said, ‘If some agreement was being set up to circumvent right to buy, then that could be unlawful, not less for being for an improper purpose.

‘But right to buy loss – as an incidental consequence of the loss of the secure tenancy – doesn’t come anywhere near that.

‘It’s a means of accessing private funds for public good, and it’s collateral damage, in the sense it’s an incidental outcome that the right to buy would be lost as a consequence.’

In reply, Mr Wolfe argued that the item of ‘property’ in question, was not ‘simply the right to buy’, with the tenancy being ‘prescient to that’, as Mr Goudie had set out.

Instead, the ‘tenancy is a piece of property, and the right to buy is part of that’, adding that ‘what’s in play here, is a secure tenancy’.

Mr Wolfe added that the question is ‘appropriately dealt with’ in the present judicial review proceedings, rather than as advocated by the defence, in the county court.

This is because, a ‘specific question’ is being posed about the way the council dealt with the rights interference, and triggered by the demolition option.

The judge said, ‘What do you say to the point that it’s not just offering an assured tenancy, it’s offering a secure tenancy elsewhere?’

‘We say, it’s not appropriate to shoot that down the track to the county court,’ replied Mr Wolfe. ‘It’s a scheme question.’

He added that Mr Goudie ‘makes much of the public interest of the redevelopment’, but Mr Wolfe argued that there needed to be analysis of the ‘counter-balancing public interest’ of the ‘the less intrusive option’.

‘Why not adopt the less intrusive option?’ he said.

‘Nothing has been said about why that would be a bad idea, not least because the council doesn’t consider it.’

The judge said, ‘I suppose they’d say it’s the impact on the HRA [Housing Revenue Account], but then, that comes back to the government policy.’

Earlier, Mr Goudie made separate submissions on the point of ‘delay’, in which he claimed that the case should be thrown out because it was allegedly not brought promptly.

With the support of a local councillor Scott Ainslie, residents ‘called in’ the March decision for review by the council’s Overview and Scrutiny Committee (OSC), and waited until after the committee decision on May 10, before making the high court claim.

This was because it was open to the OSC to refer the decision back to cabinet (which it did not do), and the court was very likely to have refused permission for the judicial review if this alternative remedy had not first been pursued.

Judicial review claimants have three months from a decision to launch a challenge, which was complied with, but there is a further requirement to lodge them ‘promptly’.

Mr Goudie suggested the claim should have been put in earlier and as a result of the delay, progress on the regeneration was put back by several weeks.

Mr Wolfe said the court had been provided with ‘no evidence at all’ about what difference it made, and the court heard that various circumstances, such as the dearth of judges hearing cases over the summer, meant that in the end there was only three weeks lost.

If time was so much of the essence, it would have been open to Lambeth to expedite the scrutiny hearing by bringing the date forward, added Mr Wolfe.

Earlier, the judge also flagged a possible argument, that the cabinet decision was ‘cured’ by the eventual OSC decision not to refer back, in that it potentially indicated what cabinet would decide if it were now forced by the court to reconsider.

Mr Wolfe said, ‘The point is, the OSC looked at it on the same basis.’

The judge suggested, ‘If they repeat the same mistakes, they’re not curing it.’

He added, ‘If we were being told the council dealt with all the points afresh [via the OSC], that would have been a completely different case.’

Mr Wolfe said, ‘The appropriate result is a proper, fair consultation and you should quash the decision.’

‘They say the decision would be the same,’ said the judge.

Mr Wolfe said that if courts took as read defendants’ claims that their decisions would be the same, ‘no consultation challenge would ever proceed’.

The judge said he was reserving judgement and added, ‘I’m aware of the urgency of the matter and the need to avoid continuing uncertainty.

‘I’ll deal with it as quickly as I can.

‘There’ll be a hand down in the usual way.’

In summary, Lambeth denies four grounds, that: The council erroneously included £7.5m income which would have otherwise for each of the options resulted in its own preferred demolition option failing its own ‘must achieve criteria’; Misled its own cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of this consultation response; Failed to provide up-to-date data relating to the HRA finances to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and Breached Mr Plant’s right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’, contrary to current government policy.

The case was heard between November 15 and 17 and the judge has reserved judgement, which is expected to be handed down within weeks.

Judicial review 2, part two

Lambeth council’s regeneration consultation with Cressingham Gardens residents was based on out-of-date financial information that concealed £48 million of extra borrowing capacity, the high court heard.

Cllr Matthew Bennett, cabinet member for housing and regeneration, knew  that the situation had dramatically changed even before the consultation started, but kept it to himself, it was claimed.

Residents involved in the second round of consultation were provided with old 2014 data indicating that there was just over £5 million of ‘debt headroom’ in the Housing Revenue Account (HRA), when the unpublished figure for 2016/17 was £67.7 million, and £52 million at its lowest in 2017/2018.

David Wolfe, QC, representing claimant Andy Plant, described it as a ‘very significant failure’ of the consultation.

As a result of the misinformation, the prospect of a resident-supported £10.9 million refurb-based regeneration (“the People’s Plan”) funded via the HRA was presented to cabinet members and residents as impossible, when in fact there was a pot of up to £52 million to draw from.

The alleged failure came just two months after a judge quashed the council’s unlawful 2015 decision to remove refurbishment options from the consultation, after finding that the council had not demonstrated that refurbishment was unaffordable, as claimed.

Residents chased officers for the latest ’30-year HRA business plan’ for many months prior to and throughout this year’s resumed consultation, and a ‘dashboard summary’ was eventually published – but in April this year, and, critically, after the March 21 cabinet decision had been made to flatten all 306 homes.

This was followed only as recently as October this year, with disclosure of the full spreadsheet (albeit with all formulas removed) to claimant Andy Plant’s legal team, during the run-up to the hearing.

‘Plainly that was very different to the basis on which consultees, and the cabinet, had proceeded,’ said Mr Wolfe in a written legal summary seen by the court.

Lambeth claims that cabinet members made an informed decision having been separately briefed on the point, despite it not being spelled out in the relevant cabinet report.

The council’s director of finance Christina Thompson, sought to explain the issue in a witness statement dated September 29 this year, which suggested that Cllr Bennett may have known about the improved status as far back as October last year.

Following a further request for disclosure, Lambeth produced a briefing note from an October 2015 meeting with Cllr Bennett entitled ‘HRA Rent and Budget Setting 2016/17’, which suggested officers were at that time projecting the headroom to be £39 million, at its lowest.

Mr Wolfe argued that while documents relating to other informal meetings were disclosed by Lambeth, they did not back up the claim that other cabinet members besides Cllr Bennett knew the position when they made their decision, and he disputed the claim that members were given the opportunity to evaluate the information in the context of the Cressingham decision. No minutes or attendance sheets for the meetings were made available.

‘Nevertheless, Christina Thompson’s suggestion demonstrates, rather than curing, the problem,’ said the barrister.

‘In particular, it shows that, even if (which remains up in the air) final figures were not available when cabinet members took the 21 March decision, officers at least knew that the previously-published figure, which had underpinned the consultation and the officer report, could not be relied upon.

‘And yet the point was not made public, despite it plainly changing the basis on which consultees had responded to the consultation, nor provided to cabinet for its meeting.

‘Indeed, far from making public the realisation that the officer report was reliant on out-of-date information, the officers kept quiet on the point; and so, it seems, did the lead member.’

Even if, said Mr Wolfe, all cabinet members were aware, the same information should have been provided to consultees to enable them to ‘make representations’.

The court heard Lambeth accepts it did not provide the updated information to residents, but claims it would have made ‘no difference’, because it now says it could not afford to repay the debt if it did decide to borrow the money.

In particular, resident Gerlinde Gniewosz, one of the authors of the community-led alternative ‘People’s Plan’ (TPP), ‘is asking for it, getting rebuffed’, and ‘it’s sitting there’, the barrister told the court.

Mr Justice David Holgate asked, ‘Are you saying the point [made by Lambeth] is a bad one because when you look at the reports to the members, it doesn’t deal with headroom and borrowing?’

‘Yes,’ replied Mr Wolfe, ‘Or let alone regeneration of Cressingham – it’s just looking on the year ahead for rent setting.

‘What emerges when we push, is the documentation Ms Gniewosz was asking for in January and getting nowhere.’

As a result, ‘There appears to be a lot more available [headroom] in the very documentation she’d been asking for – she was still relying on in 2016, preparing their consultation response based on [out-of-date data from 2014], when the replacement was already in existence.

The barrister added, ‘We say that’s a very significant failure in terms of the consultation.’

The judge asked, ‘Now you have got the document [the full 30-year business plan], what do you ask me to do with it?…So far no-one’s said what difference this makes in terms of what people would want to say about it.’

Mr Wolfe replied, ‘What you have post April HRA business plan [is data] which shows a very much greater headroom in a context in which headroom had been the issue.’

‘The court needs to think about what on earth could you say about it that could conceivably change the price of eggs?’ pressed the judge.

‘I expect that’s what the council will say.’

Mr Wolfe claims that Lambeth’s fixed £408m debt cap was ‘expressed as the constraining factor’ during the consultation, however following the decision to demolish, the council has changed its stated reason.

The council now claims that the financial motive for demolishing the estate is its inability to afford to repay the debt, meaning that it does not have enough income to pay back the money it borrows.

One of the reasons behind this, appears to have been hinted at in the October 2015 Cllr Bennett briefing note.

In a section headed ‘Estate Regeneration’, it was confirmed that the rental income from the relevant council estates has been taken out of the HRA.

The passage explains that this is because the new homes will be owned by Homes for Lambeth, the Special Purpose Vehicle (SPV) or private company being set up by the council to redevelop the estates, and the income would not be available to the HRA.

The document stated, ‘This results in a reduction in income and expenditure but the debt associated with these properties remains in the HRA and continues to be serviced from within HRA resources.’

Mr Wolfe told the court, ‘Something else has been identified, but it wasn’t the basis on which we were consulted, and we didn’t have the material to respond to it, if that was the issue, and that certainly wasn’t spelled out to members in that way.’

On day two of the hearing, a further witness statement from Ms Gniewosz was received by the court, attempting to address the issue raised by the judge.

After noting that full analysis of the business plan spreadsheet is restricted by the removal of formulas, Ms Gniewosz stated, ‘However, it is now possible to see there is clearly sufficient HRA debt headroom to finance both refurbishment and the creation of new homes as TPP.  

‘The full cost of the 37 new homes in TPP was costed at £3.9m, covering both the conversion of some of the undercroft car park area and the demolition/re-build at higher density of the block containing the void flats.

‘Together with the £7m for the refurbishment of the existing homes, the TPP would require £10.9m in investment upfront, which easily fits within the current HRA debt headroom profile even in the single year with the lowest level available.’

Addressing the council’s claim that it would not be able to afford the debt, Ms Gniewosz stated that the newly revealed spreadsheet is also an opportunity ‘to start to understand how the defendant is accounting for the impact of Option 5 [full redevelopment] on the HRA’.

She added that if given the opportunity, she would have observed how in later years, the redevelopment seems to be having have a ‘negative impact on the HRA …that arises through the loss of net rental income …as the rebuilt homes would no longer belong to the HRA, but rather the SPV (‘Homes for Lambeth’).’

The court was also made aware that councils which fail to account for housing within the HRA would be in breach of Government policy – that being the policy on the ‘general power of competence’, under the Localism Act 2011.

In a letter to a resident referred to in court, the Department of Local Government and Communities’ (DCLG) HRA Division stated that it is ‘not acceptable’ for local authorities to set up ‘new wholly owned or controlled housing companies deliberately to avoid the …limits on indebtedness put in place to help address the inherited deficit’.

It continued, ‘The Government’s policy is that where a local authority is developing or acquiring and retaining new social or affordable homes for rent, that they should be brought forward using the powers available to them under part II of the Housing Act 1985 and that housing should be accounted for through the Housing Revenue Account.’

James Goudie QC, defending Lambeth, said he objected to Ms Gniewosz’ late witness statement, calling it an ‘attempt to introduce expert evidence’, but later agreed to consider its contents overnight.

Mr Goudie went on to repeat Lambeth’s claim that redevelopment is preferable, mainly because it would not require funding from the HRA, and he described the headroom issue as a mere ‘technicality’.

The barrister also claimed the terms of engagement were made clear to residents in the January 2016 consultation booklet.

He highlighted the booklet’s claim that the estates going into the regeneration programme are partly those ones which the council has decided that refurbishment would not be ‘good value for money’.

The council is ‘concerned about not some technicality about HRA headroom but a readily understood concept of value for money’, argued Mr Goudie.

The barrister also said that the ‘cabinet wasn’t misled’ because, he claimed, the cabinet report itself did not cite headroom as the problem, and was ‘not critical’ in undermining the ‘People’s Plan’.

‘It’s simply a switch in emphasis from the restriction on borrowing’ against the HRA headroom, he said, ‘to prudential borrowing’, and, he claimed, ‘Prudential borrowing had been explained to residents at one of the viability workshops.’

Highlighting a need to ‘consider whether [the council] can afford to borrow the funds’, he said, ‘The central issue is affordability,’ adding, ‘All that the updated figures show, is that the situation is worse.’

Judge Holgate drew the barrister’s attention to the claimant’s argument, that ‘affordability of servicing the debt’ had not been highlighted to cabinet.

‘One has to consider the report as a whole, not whether this point is covered in a particular paragraph,’ said Mr Goudie.

‘I agree,’ said the judge, ‘Where else do we look then?’

Mr Goudie took the judge to a paragraph in the earlier January 2016 cabinet report, but the judge said, ‘The other point Mr Wolfe makes is, it’s concerned with setting rent levels.

‘Your witness has relied upon this [the condition of the HRA] as being something already known to members.’

Another paragraph highlighted by Mr Goudie in the same report, described Lambeth’s allegedly thwarted plan to ‘borrow the full amount of funding available to invest in the housing stock’, adding, ‘The Welfare Reform and Work Bill 2015 and more specifically the rent reduction of 1% each year for four years means that the utilisation of borrowing up to the limit is now unlikely due to affordability.’

Mr Goudie insisted the point was a ‘perfectly good’ one.

However Mr Wolfe reiterated that the passage does not address whether this is the reason for refurbishment options being ‘off the table’ on Cressingham.

In addition, Mr Wolfe argued against Lambeth’s point that either way, it still could not afford it,and the judge said, ‘I think they’re saying it makes no difference because even if they move along, it’s the bottom line.’

To emphasise his point that it was unfair of the council not to present these issues to residents for comment, the barrister referred again to the consultation booklet, and the lack of any reference to ‘value for money’ meaning ability to pay off debt.

The only connotation of ‘value’ in relation to the options is ‘what do you get for your money’, said Mr Wolfe.

‘Nothing to do with affordability of borrowing costs,’ confirmed the judge.

Mr Wolfe also highlighted two other references to ‘value’ in the report to cabinet – the profitability of the options, and estimated costs, adding, ‘Neither of them is affordability’.

‘We simply put it this way,’ he continued. ‘This was a materially unfair process, because we have not had an opportunity to comment on what is now said to be the reason for the decision.’

Alluding to Lambeth’s multiple changes in focus, from HRA headroom, to inability to service debt, to affordability to value for money, which are all precise and different concepts, “The judge said, ‘I detected there was a shift in Lambeth’s position from reading the papers,’ adding, ‘What difference would it have made?

The judge remarked that he understood that people feel they did not receive financial information, ‘but I’ve still got to decide whether this decision has to be quashed’.

Mr Wolfe paraphrased a comment made by the claimant in his witness statement, that ‘had we had the opportunity to address this point, we would have had things to say that might have made a difference’.

The barrister argued that ‘It’s not for the court to say’ how the issue would have progressed as a result of comments residents may have made.

‘We were beavering away on the headroom, because that seemed to be the issue,’ added Mr Wolfe.

Mr Wolfe referred back to Ms Gniewosz’ last witness statement, which highlights how TPP would create new income streams for the council, and remarking on ‘whether our project could cover its debt’. ‘She says it could,’ he said.
‘She has been deprived of the opportunity to make that point doing the consultation process.’
He added that Lambeth’s failure to offer residents that chance to comment on a key point they now declare to be the ‘show stopper’, constitutes ‘a breach of natural justice par excellence’.
‘What’s being said against me is, “This was all known in January”.
‘If that’s right, why wasn’t it said in January [when the consultation launched]?’ and suggested that the omission has rendered the consultation an ‘entire waste of time’.
Mr Wolfe distinguished the current situation from a change in circumstances after the decision, such as if the Government were to prohibit developments from being carried out through the HRA.
‘It’s said Cllr Bennett knew it even earlier, in October, or November,’ he added.
‘Something elliptical appears in the [January] report on rent-setting. If that turns out to be this show-stopper…’
Mr Justice Holgate suggested that it has been known for judges to determine what the decision between financial projects would have been by looking at the evidence.
Mr Wolfe argued that he should not try to answer the question that ‘arises from the failure in the consultation, in the context of knowing what was known by the council throughout’ but was not made public.
He added, ‘What we’re entitled to be told is what the issues are, given a choice to address them and have our responses taken into account by the decision-maker.’

In summary, Lambeth denies the four grounds that: The council erroneously included £7.5m income which would have otherwise for each of the options resulted in its own preferred demolition option failing its own ‘must achieve criteria’; Misled its own cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of this consultation response; Failed to provide up-to-date data relating to the HRA finances to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and Breached Mr Plant’s right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’, contrary to current government policy.

The case was heard between November 15 and 17 and the judge has reserved judgement, which is expected to be handed down within weeks

Judicial Review 2, part one

A high court judge has described as ‘troubling’ the basic accounting errors which Lambeth council allegedly made before opting to demolish – rather than refurbish – Cressingham Gardens Estate.

Lawyers for residents claim the officers’ failure meant that cabinet members behind the decision, were wrongly led to believe the £110m redevelopment would be profitable (have a positive £0.8m Net Present Value (NPV)) – a strict requirement of its own ‘must achieve criteria’.

The residents’ analysis of the redevelopment suggests it would not be financially viable and would in fact require tens of millions of pounds of public subsidy.

Meanwhile, the court heard how the community’s own alternative ‘People’s Plan’, which residents claim would both make a profit and offer dozens of extra homes at council rent levels, at the same time as averting the bulldozer, was wrongly discredited in the cabinet report. 

The judicial review claim, brought on four grounds by resident Andy Plant, is the community’s second challenge to Lambeth council’s decision-making in little over a year.

If the decision is found to be unfair and unlawful, it could be quashed.

In November last year, another Cressingham Gardens resident, Eva Bokrosova, won her case, resulting in the first decision to demolish being quashed. 

The judge in that case found Lambeth had unlawfully removed refurbishment options from the consultation after failing to produce evidence that they were ‘unaffordable’.

The most recent decision to demolish was made at a cabinet meeting on March 21.

Residents have been questioning the justification for and viability of the council’s preferred scheme throughout the consultation, which was first launched in September 2012.

Viability calculations in the current case, show £7.5m ‘income’ from the council being paid to ‘Homes for Lambeth’, the private company (special purpose vehicle (SPV)) Lambeth is setting up to build the new development, but not being accounted for as an expense in the financial model.

The March 2016 cabinet report stated that the money was to be spent on masterplanning and buying out leaseholders, and would be ‘recouped through the projects through Homes for Lambeth in due course’.

In a witness statement made in July, Lambeth’s regeneration programme manager Julian Hart, claimed that in the ‘detailed cash flow model, this expense is paid back to the council over the course of the construction period,’ when closer analysis revealed it was not, the court heard.

In the absence of evidence to back up Mr Hart’s claim, in October lawyers for the claimant wrote to Lambeth, ‘seeking documents that would show the recoupment’.

Later that month, a letter from the council’s legal services department confirmed the local authority had been ‘unable to locate any [such] documents’.

Just weeks before the hearing, Lambeth finally admitted it had not included the multi-million pound expense in the financial model, which was calculated by development consultants Airey Miller. The revelation was buried in paragraph 21 of a witness statement from finance director Christina Thompson. 

The judge, Mr Justice David Holgate, described the paragraph, which was supposed to clarify the situation, as ‘incomprehensible’, and part of a ‘delphic [deliberately obscure or ambiguous] witness statement’.

In the statement, dated September 29 this year, the finance boss accepted that criticism of the council’s approach to account for the money in the NPV ‘may have been justified’, but only if the sum were a loan or a grant.

She argued that the income was neither, adding, ‘the money is best described as a sum to be recouped’, partly because ‘Lambeth will be the sole shareholder in Homes for Lambeth’.

She claimed that it was therefore ‘appropriate to include the sum in the NPV calculation without showing its recoupment’. 

Another reason she cited was that the ‘scheme is expected to generate a surplus’.

David Wolfe QC, for the claimant, told the court, ‘I’m not sure her paragraph makes sense, and I’m not going to try and make it make sense.’

In a legal ‘skeleton argument’ contained in court papers, Mr Wolfe stated, ‘The option which the cabinet ultimately adopted, was said in the [cabinet] report to have a positive NPV – thus meeting a must-achieve criterion.

‘But the NPV figure included a £7.5 million cash income figure, which tipped it from negative to positive.’

Mr Wolfe argued that it was not appropriate to include finance as income in such a calculation, but even if it were allowed, it should have been properly accounted for.

He said that the point should be considered in the ‘context of the consultation process’ and a ‘dialogue with members of the public’ in which they were supposed to have a ‘chance to assess the viability’.

‘We then get to an element which emerges as a tipping point, and we get them changing and varying the consistency,’ added the barrister. ‘Variations not only about what it is, but also about how it will be treated and has been treated.’

Seeking to understand Lambeth’s decision to compare the viability of its regeneration options using NPV calculations, judge Holgate referred to the ‘difficult’ decisions’ the council supposedly faces in weighing up which estates to refurbish and which to redevelop.

He said that in this context there was a ‘tendency’ for Lambeth to see NPVs as merely ‘theoretical’, partly because they do not take into account claimed problems with sourcing funding for certain options.

Turning to James Goudie QC, defending Lambeth, the judge probed, ‘If your clients produced a positive NPV [a profitable model] for refurbishment, that might be a factor that could influence the choice as to whether that scheme should go ahead for refurbishment?’

Mr Goudie replied, ‘One could argue that the project could be done without doing any NPV exercise at all.’

‘Why do an NPV exercise if they’re not going to use it?’ pressed the judge.

Mr Goudie said he would ‘come back to that’.

The barrister later returned to the topic of the claimed surplus, and how that might excuse the missing £7.5 million.

The judge agreed the surplus was ‘pertinent’, but repeated, ‘I need to know how to handle’ the failure to include expenditure.

He added, ‘I draw the inference unless you tell me otherwise, if it had been modelled, it would reduce the cashflow.

‘Whether it makes it [NPV] negative, it’s not for me to say.

‘What is the legal analysis – why shouldn’t it have been taken into account?’

He continued, ‘For months, Lambeth is saying that the repayment is in the model [and] it’s being taken into account.’

‘But almost at the eleventh hour, this witness says, “It’s not in the model,” and we have this paragraph attempting to explain that.

‘This is troubling me.

‘This is a mandatory criterion. This is the council’s own decision-making framework, not something imposed on them by the court. It’s something they chose as a test.’

Mr Goudie then pointed out a passage in the cabinet report which said an option with a negative NPV should only ‘probably’ be rejected.

Mr Wolfe had explained that ‘probably’ was a reference to schemes in general, and did not grant the council freedom to deviate from the official basis for decision-making about Cressingham.

Mr Goudie said, ‘If all [options] were [NPV] negative, a choice still has to be made.

‘It can’t seriously be suggested that if you manage to contrive that all are negative, that nothing is going to happen.’

He added, ‘Whether it had a positive NPV ultimately or not… one has to see the NPV in perspective.’

The judge went on to say that if the cashflows had modelled the £7.5m, ‘That, to use the vernacular, would be a slam-dunk.’

‘Even if the approach to NPV could be regarded as erroneous,’ said Mr Goudie, ‘this doesn’t mean that amounted to unlawfulness, still less that it would warrant any relief, because we were finally unable to fund any refurbishment of the estate.’

The barrister claimed that the refurbishment options (1-4) were dependent on funding from the Housing Revenue Account (HRA) (an assertion disputed by the claimant), which could not be afforded (also in dispute), while the demolition option (5), could be privately funded.

He added, ‘Whilst we would wish to be much more positive about Option 5, we submit it was the least of the worst of evils.’

After discussing the contention with regeneration officers behind him, Mr Goudie finally offered an explanation about the surplus, claiming that it was in fact ‘£25 million’.

He said this huge sum came from the difference between the ‘discount rate’ (6.09 per cent – the percentage used to perform the NPV calculation), and what the council believed would be the real, much lower cost, of borrowing (around 4 per cent).

This was possible because the council could control the ‘state aid margin’ – an interest rate payable because the SPV has to compete as a private company with market lending rates.

‘So, what you’re saying, is that in this explanation, the £7 million can be taken out of the £25 million, without disturbing the £824 thousand NPV?’ asked the judge.

‘Yes,’ said Mr Goudie. ‘Christina Thompson’s witness statement states there’s a sufficient surplus to be able to recoup the £7.5 million if and when that might be desired.’

‘She doesn’t give your explanation,’ said the judge. ‘Maybe there’ll be another late witness statement. I’d much prefer if it’s in the documentation we have already.’

When the court convened again on the third and final day, Lambeth produced a document which sought to explain the matter further.

However, the judge spotted a flaw in the author’s explanation of the NPV calculation.

‘Where does it come from?,’ asked the judge. Mr Goudie replied that it was ‘done by Mr Holbrook’, his junior barrister who defended Lambeth in the previous judicial review.

The judge then corrected Mr Holbrook’s approach.

Mr Goudie continued to press the point about the money being ‘readily recoupable’.

‘I get your point,’ said the judge. 

The court also heard how cabinet members were misled about the contents of the People’s Plan (TPP), which was discredited in the cabinet report.

Mr Wolfe argued that in leaving out explanatory appendices from the cabinet report, ‘the council officers had a duty, when summarising and appraising TPP, to do so accurately, fairly, on a proper basis and in sufficient detail in order for the cabinet to be able to conscientiously take into account the consultation response which TPP embodied’.

He added, ‘The problem, however, was that their summary and appraisal contained material errors on key points which officers said (in the report) were fatal to TPP.’

Firstly, the report stated that TPP had been over-optimistic in assuming that 80 per cent of rental and service charge income would be available to reinvest, when the figure allowed in the plan is closer to half of this.

This inaccuracy was exacerbated by the fact that the council also wrongly claimed that it spends around 30 per cent of income from Cressingham Gardens on repairs and maintenance, when a freedom of information request revealed it was only 7.64 per cent.

The report also claimed that the cost of repurposing the undercroft car parks into housing (23 flats), would cost about four times more than calculated in TPP, which put it at only £52k per home.

TPP’s detailed costings were supported by an architect and a quantity surveyor. By contrast, the council’s estimate was two short sentences and ‘very much finger in the air’, said Mr Wolfe. He said this was a distinction which was not made clear to cabinet members.

In addition, officers also ruled out the conversion after claimed the ceiling heights would not comply with the London Housing Design Guide, which was not true.

The guide, which the judge observed was a guide and not building regulations, suggests new housing would need to have higher ceilings, but exceptions could be made for conversions in sensitive historic contexts or conservation areas.

The court heard how English Heritage (now Historic England) strongly suggested the council consider extending the Brockwell Park Conservation Area to include the estate, as a reflection of its ‘local significance’.

‘It’s put as a very clear no-go,’ said Mr Wolfe. ‘It’s put as a show-stopper’, he added, arguing that this was ‘bound to impact’ how the cabinet members viewed the proposal.

The judge pointed out that the report contained a ‘litany of criticisms’ of the proposed conversion, including about restricted daylight and the fact that the extra flats would be ‘single aspect’.

A third error in the summary of TPP to members, was the report’s assertion that the proposal was reliant on funding from the Housing Revenue Account (HRA). The judge acknowledged that TPP in fact details a number of alternative funding streams.

Finally, the council’s analysis included £1.4 million of ‘weathertight repairs’ costs in its analysis of the plan, when the scope of the works has now decreased to £430k, meaning their decision was based on incomplete data.

Mr Goudie insisted the report ‘addressed TPP very fully’ and had been treated with an ‘abundance of fairness’.

Of the estate’s critics of the council, he said, ‘They always want yet more. They are simply insatiable.’

However he admitted, ‘I do appreciate that on some points I may not be able to submit more strongly than, “It [the analysis] passes muster”.’

He added, ‘In our submission it did, and certainly did not constitute unfairness.’

Regarding the repurposing of the car parking space, Mr Goudie conceded that TPP offered a similar number of extra homes for council rent levels as does Option 5 [in TPP a further 14 new build homes are proposed at the north end of the estate, totaling 37, while the council’s best effort is 27].

However, he suggested that putting the current points aside, they remained ‘unsatisfactory’, due to the ‘undesirability of homes in a car parking area’.

Lambeth denies four grounds that: The council erroneously included the £7.5m income which would have otherwise for each of the options resulted in its own preferred demolition option failing the ‘must achieve criteria’; Misled its own Cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of this consultation response; Failed to provide up-to-date data relating to the HRA finances to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and Breached Mr Plant’s right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’ contrary to current government policy.

The case was heard between November 15 and 17 and the judge has reserved judgement, which is expected to be handed down within weeks.

Demolition-threat residents ready for judicial review 2

Cressingham Gardens residents are getting ready for their second High Court battle over what they claim is Lambeth council’s unlawful decision to demolish their homes.

Andy Plant, a resident of the estate near Brixton in south London, is bringing the second challenge on four grounds (listed below), in a case listed for three days and beginning tomorrow (November 15).

Just 12 months ago, another resident of the estate Eva Bokrosova (pictured bottom of page), won her case against the local authority which had unlawfully resolved to flatten the estate’s 306 homes. Mrs Justice Elisabeth Laing quashed the decision after finding Lambeth had unfairly dropped refurbishment options from the consultation.

Residents claim that rather than carry out a sound review of resident feedback, the council briefly re-consulted early this year, before making the same decision at a heated cabinet meeting on March 21, this year, rejecting the residents’ alternative scheme. The Labour-run council hopes to completely redevelop the estate at an estimated cost of £110m.

As part of the resumed consultation, the council had agreed to consider an alternative option called ‘The People’s Plan’ – a lengthy consultation response compiled by residents, including Mr Plant (pictured centre, main image).

The plan not only aims to save most of the homes with a refurbishment programme, but would also increase the number of council-rented homes by 34, beating Lambeth’s proposals for 27 extra homes at council rent levels (of a total extra 158). The council claims it can only achieve this through full demolition, and privatisation of the redeveloped estate.

The cost of the council’s controversial plan is projected to exceed £100 million, compared to the residents’ proposal, which would need a fraction of that.

Lambeth proposes to achieve its aim by setting up a specially created private company known as a special purpose vehicle (SPV), which would be used to raise funds. Following demolition, the land would be transferred to the SPV and private investors would be signed up to finance the redevelopment.  The new estate would therefore be privately-owned, rather than council-owned, so placing the homes at risk of being sold off.

Residents choosing to remain would lose their secure ‘council tenant’ status, including the ‘right to buy’ and associated statutory rights. Lambeth has also admitted that living costs will rise for those living on the redeveloped estate.

Lambeth’s swift re-consultation – which started at the end of January, and ended on March 4 – concluded again that any options entailing a degree of refurbishment, including ‘The People’s Plan’, were all unaffordable, blaming Housing Revenue Account (HRA) constraints and central government cuts.

At the High Court on Friday, August 19, this year, Mrs Justice May granted permission to allow Mr Plant to challenge the council’s consultation and subsequent decision.

This was followed on September 26, with the granting of an order prohibiting Lambeth from forging ahead with the regeneration of Cressingham Gardens, which includes a ban on possession proceedings and CPOs.

Mr Justice David Holgate will hear the judicial review at the Royal Courts of Justice over three days beginning on November 15. Judge Holgate is expected to reserve judgement to a later date.

In four grounds of claim, Mr Plant argues that Lambeth council’s decision to demolish the estate is unfair, and unlawful because the council:

  1. Erroneously included a £7.5m loan to the SPV in its calculation of the Net Present Value (NPV), which would have otherwise for each of the options resulted in its own preferred demolition option failing the ‘must achieve criteria’;
  2. Misled its own Cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of key aspects of this consultation response;
  3. Failed to provide up-to-date data relating to the HRA finances  to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and
  4. Breached his right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’ contrary to current government policy.

If the judge agrees the decision was unlawful, it could be quashed for the second time and have far-reaching implications for other local authorities across the UK.

The decision follows communities secretary Sajid Javid’s refusal in September to grant a compulsory purchase order (CPO) to Southwark council, which had been gearing up to begin phase one of the Aylesbury estate redevelopment.

And it joins a growing list of recent “citizens’ challenges” to the decisions of both local and central government – mounted by people who refuse to allow those in power to abuse the law without fear of public scrutiny.

Mr Plant commented: “Once again, residents of Cressingham Gardens were dealt an unfair blow.

“It’s very sad that we’ve had to take this step, but it is in response to what we see as cavalier behaviour on the part of Lambeth councillors and officers, where they seemingly treat public property as if it’s part of a game of Monopoly.

“I can see for myself that their privatisation plans have the potential to devastate the lives of real people (tenants and homeowners), and are likely to jeopardise the future of true council housing in the borough for generations to come whilst doing almost nothing to help those on the housing waiting list.

“On the contrary, many of our residents might well find themselves unable to find secure housing locally as a result.”

Cressingham Gardens residents first learned their homes were under threat in the summer of 2012, when Lambeth launched its regeneration programme, which now includes six of the borough’s estates: Cressingham Gardens, Central Hill, Westbury, Fenwick, Knights Hill and South Lambeth.

In February 2014 the council suggested five options for discussion by Cressingham Gardens residents, that were the subject of the first consultation.

The options were:

  • Option 1 – Refurbishing the estate and bringing all council tenant homes up to decent homes standard, including the six void flats that have stood empty for over 15 years;
  • Options 2 and 3 – Refurbishing as in Option 1, plus infilling to create new homes.
  • Option 4 – Partial demolition of the estate, with the net extra in new build homes sold at top market price
  • Option 5 – Full demolition and rebuilding of the estate at higher density

The local authority has consistently promoted Option 5, despite a clear majority of residents favouring a refurbishment-led option.

The legal firm in both the Plant and Bokrosova cases is Leigh Day.

Donate to the Cressingham residents’ fighting fund here.

DSC_0369
Eva Bokrosova successfully challenged the decision by Lambeth in 2015

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FOR FURTHER DETAILS PLEASE CONTACT: cressinghamlife@gmail.com