PRESS RELEASE: RESIDENTS GRANTED PERMISSION FOR SECOND JUDICIAL REVIEW AGAINST COUNCIL

Residents of a popular council estate are embarking on their second High Court battle in 12 months, after a judge granted permission for a judicial review of a decision to demolish their homes.

Mrs Justice Juliet May ruled on Friday that Andy Plant, a resident of Cressingham Gardens estate, near Brixton in south London, can bring the second challenge against the London Borough of Lambeth on all the grounds listed below.

In November last year, another resident of the estate Eva Bokrosova, 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.

Lambeth council’s cabinet rubber-stamped the proposed £110m full redevelopment option at a meeting on March 21, following a brief consultation early this year.  As part of the resumed consultation, the council had agreed to consider ‘The People’s Plan’ – a lengthy consultation response compiled by residents, including Mr Plant.

The resident-devised alternative not only saves most of the homes with a refurbishment programme, but also increases the number of council-rented homes by 34, beating Lambeth’s proposals for 27 extra homes at council rent levels. The council 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 cost a fraction.

The council proposes to achieve its aim through 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.

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.

Lambeth council now have 35 days from the judge’s decision to file and serve their detailed grounds of defence. The date for the judicial review hearing has yet to be fixed, but is likely to take place at the Royal Courts of Justice in London towards the end of the year.

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.

Lawyers are now also preparing an interim injunction application to prevent Lambeth council from taking further steps and committing more taxpayers’ money in furtherance of their plans to demolish this much-loved estate.  The case is expected to be heard by the end of September.

Acting for Mr Plant, Rowan Smith, a human rights solicitor at Leigh Day, said: “We are encouraged by Mrs Justice May’s decision to allow full scrutiny of Lambeth council’s decision-making on the future of the Cressingham Gardens Estate, albeit that we would have preferred for Lambeth council to have made a lawful decision at the outset.

“Despite resistance from Lambeth council, the fact that permission was granted on all four grounds demonstrates the arguability of the arguments put forward by Mr Plant in this and confirms that there is indeed a case to be answered.”

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.

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FOR FURTHER DETAILS PLEASE CONTACT: cressinghamlife@gmail.com

Lambeth Labour home-snatchers bulldoze ahead

The amazing level of support for Cressingham residents fighting against Lambeth’s underhand practices was clear at Monday night’s cabinet meeting with a passionate and noisy protest. This saw the shamed home-snatchers, our cabinet members, retreat to vote on our demolition fate in private.

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Through the People’s Plan, residents had offered the council a financially viable and cost-effective alternative to demolition that also would provide 33 extra council rent homes, more than the council’s own proposals, but sadly this was overruled by the council on highly spurious grounds. Nonetheless, we will continue to develop the plan and challenge the council.

We also heard about the betrayal by Melissa Madjitey, the Lambeth resident chair of Brixton Area Leaseholder Forum, a consultant for estate agent Savills, who has stood down to become project manager for the council’s scheme – Savills having now been contracted to help set up subsidiaries of Homes for Lambeth. It’s also of note that cabinet member and Herne Hill councillor Jim Dickson is a director of Four Communications, a regeneration consultancy which counts Savills among its clients.

The final straw, triggering loud chants of “shame on you” during the meeting, was the false and highly misleading claims of the supposed financial expert on the cabinet, Cllr Paul McGlone, ward councillor for Ferndale. He said redevelopment was the “only affordable option”. How can a supposed expert fail to address the profitability of the People’s Plan, compared to the flawed unviable redevelopment plan? He should be ashamed. Our professional analysis submitted to the council shows redevelopment would require up to £40m public subsidy on top of the £112m needed from a private investor. How can this folly be justified during crippling austerity and while libraries are being closed across the borough?

And no-one should consider themselves safe from the land grab – we heard the emotional pleas of a homeowner living next to Cressingham, whose block Park View Court is under serious threat from compulsory purchase because of the scheme. This is a sign of desperation from Lambeth which needs to build and sell more overpriced private flats to make its plan look viable. It’s worth noting that Lambeth’s property company plans to sell one-bed flats at £436k; two-bed flats at £610k; three-bed flats for £750k; and four- bed flats at £863k; with market rents ranging from £345/wk for a one-bed flat, to £757 per week for a four-bed flat. Even the rents designed for those on housing benefit are high at at £204/wk for a one-bed, and £265/wk for two-beds, all in an area where the median household income is around £29,000 pa.

Of course there is a very real risk that the impact of this scheme will only become known once the community has been ejected from their homes, and the already small number of additional council rent level homes will shrink in favour of homes for the wealthy, echoing what was seen at West Hendon (BBC documentary The Estate We’re In).

The refurbishment of Cressingham was only going to cost £7m which it claimed it couldn’t afford, but the council is already preparing to gift £7.5m to the demolition scheme, part of a £25m public investment earmarked for the private company Homes for Lambeth, to distort the sums so they look better than they are.

Such waste and cruelty, from the Lambeth Labour party, over something residents and wider organisations fiercely oppose, really beggars belief. We urge the borough’s residents to join us in opposing this council and to call for an independent inquiry into its financial and shameful wrongdoing. Please give generously to the fighting fund.

https://www.gofundme.com/savecressingham

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This article has been edited to make clear that Savills has been appointed to set up the HfL subsidiaries, not to manage them. LB has since the meeting clarified is not currently a management contract. Lambeth’s regeneration manager Neil Vokes said at the cabinet meeting: “We have appointed Savills. One of the parts of Homes for Lambeth would be a housing association. In order to set up a housing association you have to register with the Homes and Communities Agency. It’s very much a technical piece of work, whereby they have to develop a business plan for that organisation and show it’s fit to manage properties. So, the reason there was no wider resident involvement in that procurement, is because we saw it was a very technical piece of work.”
In addition, since this post was written, it has become apparent that the cabinet members quietly agreed the demolition just before leaving the room, rather than in private. This was not made clear to the members of the public gathered in front of them at the time.

LAMBETH “SWIFT DISMISSAL” OF PEOPLE’S PLAN

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PRESS RELEASE MARCH 14

Yet again, Lambeth’s regeneration team, in tandem with Labour politicians, have shown their complete contempt for residents of Cressingham Gardens. Having spent just a few days in possession of the People’s Plan report, the council issued a swift dismissal by email to residents, which was strewn with errors, distortions and omissions, at 5.17pm on Friday evening. This was closely followed by a press release in similar terms, stating that cabinet is being asked next Monday to endorse full demolition of the estate. If the council does go ahead, this will cause chaos, misery and financial difficulty for many, and will destroy a community.

Residents  are disappointed and upset to say the least, but aren’t surprised – the council hasn’t exactly set a high bar for how it conducts itself since launching the Cressingham regeneration in 2012. Even in November’s high court judicial review hearing, following many months of delays, Lambeth’s officers finally, on the last day, produced into evidence a key finance memo, which was discredited, and even the judge said it had made her feel “uneasy”. She ruled the consultation unlawful and quashed the decision, forcing the consultation to be run again.

We produced our People’s Plan to challenge Lambeth’s lazy thinking and offer an alternative that was best for residents, and which would also meet the council’s aims. On this most recent occasion, despite the short period – barely five working days – since receiving our 326-page report (including appendices), the council has claimed to have assessed it “on both feasibility and finances” and “found that it could not be considered a practical option”. We are certain this can’t be the case both for reasons of time, and the evident inaccuracies. The numerous holes, and the council’s haste and closed-mindedness, are plain for all to see.

Were Lambeth to be honest, it would admit that the preferred option of demolition is the unworkable choice, yet it chooses to gloss over its own errors, while fabricating flaws in the residents’ proposal.

For example, residents purposely invited the council to meet a neutral third party to cover their commercially sensitive funding discussions, which the council has not taken up, and Lambeth has therefore concluded its “assessment” before considering the available evidence on that point.

Secondly, Lambeth claims the PP report “relies on funding from the Housing Revenue Account and does not, therefore, resolve the question of how to fund refurbishment of the estate”. This is also a complete misrepresentation. It is true we are suggesting there is an option for the HRA to be used to fund the refurbishment. The available evidence suggests there is enough money, but in Lambeth’s true spirit of non-transparency, it has refused to share an up-to-date HRA business plan with residents. This option, along with four other suggested funding structures, is clearly set out in the PP report. There is no evidence that the council has carried out the appropriate analysis of the structures suggested. In addition, it appears the council has a further £26.5m from the HRA Earmarked Reserves for investing and improving homes, some of which could be made available for the PP.

Thirdly, the People’s Plan proposal to provide 37 additional homes (of which 90 per cent – 33 homes could be let at council rent levels), has been summarily dismissed and on a false basis, with claims that the numbers achieved are lower than they are, and false claims about non-compliant dimensions of the new homes proposed for the carpark. We believe these misrepresentations are designed to mislead residents and councillors about the veracity of the People’s Plan.  

In terms of Lambeth’s analysis of its own preferred option, there are too many flaws to mention here. We highlight just ten of them:

The council has failed to address the fact that the People’s Plan report identifies a failure of Lambeth’s own recommended option to meet its “must” have number one key criteria of achieving a positive Net Present Value (NPV). A properly calculated NPV for Full Demolition (Option 5) reveals it falls spectacularly at the first hurdle, with a negative -£6.7m to -£30m NPV over 60 years, compared with the People’s Plan, which has a positive £6.6m to £13m NPV over only 30 years.

  1. There are multiple unexplained omissions from the council’s NPV calculation, such as the absence of any maintenance costs under Full Demolition (Option 5); lack of sensitivity analyses for homeowner retention which is likely to be very low, thereby pushing up actual upfront buyout costs; a failure to include the full statutory home loss compensation and associated costs in the calculations; missing costs that ought to be in any development proposals as well as costs for known site-specific problems such as the major water main running under the estate. The totality of this means that what is being presented as a financially viable demolition programme, is in fact enormously loss making, not viable and would require massive taxpayer subsidies.
  2. The classification of a £7.5m “grant” as income, although it is simply Lambeth’s own capital cash that it is putting into their own private company “Homes for Lambeth”, massively distorts the viability and NPV assessments. Without this erroneous classification of the £7.5m, Lambeth’s proposed full demolition would be clearly loss-making even after 60 years. In addition, this grant, if it is supposedly to be repaid at some future point (no details provided) would also need to comply with state aid regulations, ie any loan would have to be provided at market rates, which is clearly not the case here.  Even if the £7.5m were permitted to be included in the NPV, which it should not be, for a fair comparison to be made with the People’s Plan, the £7.5m should be equally available to the Plan for the provision of the proposed new homes.
  3. The council may have to sell off all the new homes it builds on the open market, under legislation to fund the government’s RTB (Right to Buy) extension to housing associations, as these properties may be considered vacant “high value” properties.
  4. Under the above circumstances, it is clear that Homes for Lambeth would not be able to secure external funding, as no investor would put money into a proposal that has a grossly negative NPV, with the additional risk of having to sell off its assets.
  5. The government has said it will not allow councils to set up SPVs (Special Purpose Vehicles such as Homes for Lambeth, the private company being set up by Lambeth for property building) to be used in order to avoid current local authority accounting rules and debt caps, a fact which other councils have duly noted
  6. The government has said it will not allow SPVs to be used to deprive tenants of their rights, such as the right to buy. Lambeth’s proposal to replace secure tenancies with assured tenancies under the SPV, contravenes this policy. In fact, the financial “success” of Homes for Lambeth rests on the removal of tenants’ rights, by providing the flexibility for selling off shares and hiking rents to market levels in the future, along with the wide-ranging stripping of rights from residents – with secure tenancies being downgraded to inferior private, assured tenancies.
  7. While, as stated, we are in discussions with potential funders, regeneration manager Julian Hart is on record saying the council has not spoken to any banks, so on the available evidence regarding funding, the People’s Plan in the better position.
  8. The council’s additional homes are largely unaffordable and this contravenes its own target strategy of 60 per cent affordable (of which 100% of should be council rent levels) in regeneration schemes. (The market rents the council proposes to charge range from £345/wk for a one-bed flat, to £757 per week, for a four-bed flat. Market sales: 1 bed flat £436k; 2 bed flat £610k; 3 bed flat £750k; 4 bed flat £863k).
    At 90 per cent genuinely affordable (all council rent levels), the People’s Plan actually exceeds this target. In addition, the supposedly “affordable” additional homes in Option 5 involve large rental increases (for the majority of tenants forecasted is a 23%-25% rent increase).Furthermore, Lambeth will not be setting the rents of the new 1 and 2 bed homes at council rent levels, but at the much higher Local Area Housing Allowance levels, which we believe is designed to exploit Housing Benefit/Local Housing Allowance limits and has the effect of making Lambeth needlessly more reliant on benefits. The council is to charge LAHA levels for all extra one bedroom flats at £204/wk and two bedroom homes at £265/wk.
  9. In order to achieve its 27 homes at “council rent levels” Lambeth has massaged the numbers – by demolishing 28 four-bed homes, replacing them with only four homes of this size, and smaller three bed homes. There has been no evidence provided that actual need of residents was the driver for this configuration, and appears to be a way of boosting the paltry numbers from its previous “23”. The bald statement that all council tenants will be able to return, at the very least does not apply to those families living in many of the current four-bed homes.

Lambeth’s cabinet is about to endorse a catastrophically flawed decision made by Cllr Matthew Bennett and his regeneration team, that is very likely to be Labour Lambeth’s Iraq – aptly put by a resident of Central Hill, another estate threatened by the council. We urge officers, ward councillors and cabinet members to think again before taking the final leap.

To help save Cressingham Gardens and preserve these genuinely affordable homes for both its current residents and generations to come, we urge the public to join in the residents’ protest on March 21 and to back the People’s Plan: https://www.thunderclap.it/projects/38789-i-support-the-people-s-plan

https://www.facebook.com/events/255069118158125

Donate to the fighting fund:

https://www.gofundme.com/savecressingham

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Notes:

For further information contact cressinghamcommunity@gmail.com

 

 

High Court win hits BBC radio but housing chief Bennett is not taking responsibility

Lambeth’s regeneration cabinet member Councillor Matthew Bennett was given a real grilling by the presenter on BBC London radio yesterday evening, for setting an example of exactly “how not to do a consultation” and pouring tens of thousands of pounds of public money down the drain in the process. Listen here to the interview with him and also hear from Cressingham resident Tom Keene who outlines why the council’s decision was unlawful.

 

We perhaps don’t need reminding that Cllr Bennett is a politician and politicians are prone to trying to limit damage to their reputations after making mistakes. It may not have been intentional, but the councillor completely misrepresented the judge who quashed the decision and he even seemed to mock her. He said that the judge found it unlawful for the council to have stopped consulting on unaffordable options.

What Mrs Justice Laing actually said in her judgment was the opposite! She said she assumed the council would have been entitled to stop the consultation if it had truly found them to be unaffordable, but that this had not been shown to be the case.

She said: “I do not need to decide whether, as a matter of law, the Council could have stopped the consultation if there had been a sufficiently important change of circumstances. I assume, without deciding, that it could have done so.

“I am not satisfied, on the evidence, however, that enough changed in February 2015 to entitle the Council to stop consulting on options 1,2 and 3, contrary to the terms of section 105 arrangements it had published.

“My conclusion is that by deciding to remove options 1, 2 and 3 from the consultation on 9 March 2015, the Council acted unlawfully.”

She went on to quash the decision and before doing so, said that she was required to decide whether “if the defendant’s unlawful conduct is taken out of the equation, that would make any difference to the outcome for the claimant”.

Judge Laing concluded: “If the section 105 arrangements had not been breached, the financial position would have been much more fully before the Council. In simple terms, it does not appear to me, if that had been the position, that it is highly likely that the decision would have been the same.”

Breaking news: Lambeth demolition decision quashed

Residents are celebrating a victory against their local authority landlord after a judge quashed its unlawful decision to demolish up to 300 homes at the High Court.

Lambeth Council was said to have “nobbled” its own Cabinet committee by calling off a consultation on refurbishment of Cressingham Gardens Estate in Tulse Hill, without carrying out the proper financial analysis.

In court, the council admitted deliberately downplaying the voice of opposition to the redevelopment of the “congenial, low crime” 1970’s estate, in a town hall report summarising residents’ views. The local authority left out resident feedback including on proposed alternative funding strategies, which it claimed were “not pertinent”.

The two-day hearing earlier this month also featured a mysterious memo, which the council claimed was the “show-stopping” document which proved the repairs were unaffordable – but was nothing of the sort.

David Wolfe, QC, for claimant Eva Bokrosova, a tenant on the estate, said: “Where’s the detailed analysis? Neither we, nor the court, have ever seen it.”

The barrister said that residents had been deprived of their right to a fair consultation. If done properly, the decision may not have been made to demolish peoples’ homes, the court heard.

The judge, Mrs Justice Elisabeth Laing, agreed Lambeth’s decision on March 9 this year was unlawful, after the council unfairly pulled the plug on three “refurbishment options”, leaving only two “demolition options” – partial or complete – on the table.

The judge added that she was “uneasy” about the memo, said to have been prepared by senior accountant Julie Curtis days before the decision.

She said: “I’ve considered the written submissions of the parties and decided that the decision on 9 March 2015 should be quashed.”

Lambeth Council has been granted leave to appeal the decision on a date to be confirmed.

Some 86 per cent of residents favour repairs over the bulldozer but the council says there is no cash to do up the homes, beside Brockwell Park, near fast-gentrifying Brixton.

The claim is hotly contested by residents who have been fighting the proposals for three years and many believe the council has deliberately starved the estate of repairs to make demolition seem inevitable. Residents expect the new development to drive up living costs, forcing them out of London and destroying a supportive community.

Council tenants wishing to remain on the new estate would lose their secure tenancies and a number of rights they now enjoy.

Homeowners, including parents with children in local schools, are facing a value gap of at least £100k on the new properties and many fear they will not be able secure mortgages.

Residents of privately-owned homes neighbouring the site are also facing compulsory purchase orders as a result of the council’s plans.

The campaign is backed by prominent heritage organisations including the 20th Century Society, Save Britain’s Heritage, and the Brixton Society, and a 2014 report by English Heritage even suggested it be included in the neighbouring park’s conservation area.

The popular estate has been described as “warm and informal…one of the nicest small schemes in England”, by Lord Esher, past president of the Royal Institute of British Architects.

In July, Lambeth agreed to flatten the entire estate and replace it with 464 new flats, including just 23 additional homes for council rent. The regeneration programme was originally launched to fill a funding gap in the borough’s Lambeth Housing Standard refurbishment programme, but more recently the local Labour administration has been pushing its densification agenda with “extra homes at council rent” being the mantra used to try and trump opposition.

Its own Equalities Impact Assessment admitted up to 60 per cent of the new homes for sale will go to buy-to-let landlords, affordable only to wealthy incomers.

This was followed in October by the decision to set up Homes for Lambeth, a private developer arm of the council which aims to build 1,000 extra homes, largely by redeveloping council estates.

Outside court, Ms Bokrosova, a mother of one, said: “The council has put me and my neighbours on Cressingham Gardens through absolute agony for three full years since the regeneration was first mentioned. It misled residents into thinking they were being consulted on a possible refurbishment of the estate but really this was just a sham. I believe they only ever had their eye on one goal – full demolition – and that they are motivated by a political agenda rather than what is best for residents. This case will hopefully make Lambeth Council think twice before mistreating people in this way and I hope that we can inspire others that with an organised effort residents can show up authorities who misuse their power for what they are – bullies.

“The quashing of the decision is a vindication of what we have been saying about the council’s appalling behaviour. All we ever wanted was a fair consultation on refurbishment and so I am thrilled that repairs are now back on the table.

“I would like to thank my solicitor Ugo Hayter of Leigh Day solicitors and my barristers David Wolfe QC and Leon Glenister, for their amazing work and support.  Also a massive thank you to everyone who has supported us over the last three years.”

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Eva Bokrosova, outside the Royal Courts of Justice following the quashing

Full details of the judgement available here

Court Report Part Three: “Show-stopping” memo was not promised financial analysis

Doubt has been cast over a document penned by a senior Lambeth Council accountant which was supposedly the “show-stopping” revelation leading to a decision to demolish up to 300 homes.

The local authority claimed during the High Court hearing that the internal memo, said to have been written by town hall accountant Julie Curtis, was the game-changing moment that caused them to shut down the consultation on “refurbishment options” for Cressingham Gardens estate.

The Curtis document did not come to light earlier, despite a string of opportunities, including an email from resident board member Gerlinde Gniewosz, who was raising the alarm that the proper financial analysis had not been carried out, it was revealed.

The judge, Mrs Justice Elisabeth Laing, had earlier asked Jon Holbrook, for the council, “What changed?” between November 2014 when the refurb was still an option, and when the council pulled the plug in March this year. Mr Holbrook offered the memo.

The note, entitled “Cressingham Gardens Full Refurbishment Affordability”, had not been disclosed despite a request under the Freedom of Information (FOI) Act, in which Ms Gniewosz asked for evidence of the analysis behind the decision. The council’s response to the FOI was to re-issue the same housing revenue account [HRA] business plan issued in December 2014, adding that all the analysis they possessed was included in the publicly available Cabinet report.

Regeneration boss Neil Vokes claimed to have received an updated HRA business plan in mid February, that led the Cabinet member for regeneration, Councillor Matthew Bennett, to make the decision that some or all of the homes would be demolished.

Mr Vokes stated: “At about the time of the 2nd ad hoc meeting of 16 February I received the updated HRA business plan which confirmed that no more than £3.4m would be available for the estate from the HRA. This meant that even with the Morrow [resident-commissioned repairs costings of £7m] (which the council did not accept) refurbishment was now known to be unaffordable. It was this information that prompted Councillor Bennett’s letter of 26 February and the Cabinet decision of 9 March to stop consulting on the refurb options.”

By way of explanation for the council’s failure to disclose such an important document as part of its “duty of candour”, Mr Holbrook said earlier: “There are so many documents in this case, Mr Vokes has made an assertion and if I had to bring a document to support every assertion he makes, there would be a lot more documents than there are already. I can see it’s relevant and I can copy it and bring it to court.”

The judge remarked: “You’d think, if it was such an important document, it would have been printed out and put in a file somewhere.”

The memo finally appeared on the second day of the review into the “unlawful” decision to strike off options one to three – the “refurbishment options”. Mr Vokes, who as programme director for strategic capital projects is the council’s main witness, apologised for what he called an oversight.

David Wolfe, QC, for the claimant, noted the one-page Curtis note contained no reference to the £3.4m ceiling that Mr Vokes said was central to the decision, and was not in any way the detailed analysis that had been promised.

Mr Wolfe said: “I may be missing something, but I don’t see any reference in that memo to any £3.4m being available.”

The QC also questioned why, if the document was such a game-changer, it did not come to light as the result of a series of emails on the same day.

Mr Wolfe noted the Curtis missive was dated February 13, the same day as the financial viability topic was under discussion in emails, into which Ms Curtis was copied.

The discussion began when regeneration manager Lucia Deere distributed the project timeline among the project team, proposing various drop-in sessions, a survey of resident opinion in March and a Cabinet decision on the estate’s future in May.

Later that day, resident representative Ms Gniewosz replied, asking: “I also see no allocation of time for the financial sub-group to meet. Are you ignoring this? It has only met once in October last year. This needs to be done before any Info Pack can be drawn up, since you have still not done a proper financial model to show viability.”

A few minutes later, independent resident adviser Simon Slater, added: “I would recommend the timeline needs to reflect completion of work streams and feedback to project board to assess outcomes. …I’m assuming that residents will want time to digest the information sent to them and have individual home visits. Following the discussions and hopefully agreement on refurbishment costs, the financial viability sub group needs to meet to assess the impact these figures have on viability calculations.”

Mr Wolfe observed: “Julie Curtis receives a flurry of emails reflecting the fact that viability calculations are still very much alive, at least in the minds of Mr Slater and Ms Gniewosz.

[Ms] Curtis has produced the document that’s then said to be the show-stopper, with the viability calculations. It is perhaps surprising that she doesn’t circulate it more widely.”

He said that soon after that there had been a project team meeting, which would have been yet “another opportunity to reveal this document”. “Not done,” he added.

The project team never receives it,” said the barrister. “They only learn of the effect of it in the letter from Mr Bennett. Where’s the detailed analysis? Neither we, nor the court, have ever seen it.”

Mr Wolfe referred the court to a statement in the residents’ information pack, circulated at the beginning of that period of intensive consultation. The statement reflected on an earlier costing for repairs, based on the Tall structural survey of the estate.

It said: “Based on the findings of the Tall survey we believe that the figure on Cressingham Gardens is in the region of £45,000 per property. That sum of money is not possible either for Lambeth tenants or the council.”

The QC said that this calculation was based on the higher £14m costing, which was lowered considerably in January 2015. In addition, no information was provided about “what would be affordable if the cost came down or what the affordability threshold may be. …if there’s a £3.4m cut off or anything like that”.

He referred to another paragraph in the pack, which claimed: “So that we can compare the options and see what can be afforded, the council has looked at the income and expenditure for each option over a 30-year period.”

Mr Wolfe pointed out: “The council has never presented, defended or explained any 30-year assessment on which it said it was relying.”

Similarly, the same document’s summary of the issues on option one, stated: “In order for this option to be considered, the council would need to look at ways of reducing the refurbishment figure and/or find alternative funding sources (in addition to the Lambeth Housing Standard monies) to deliver the works.”

The document also outlined how grants might be available for building affordable homes, a funding opportunity Mr Wolfe argued should have been factored in for assessing options two and three – the other refurbishment options which entailed minimal demolition and some infill development.

Of course the decision cuts out one, two and three,” said the QC.

Mr Wolfe then moved on to Mr Holbrook’s argument that the council felt compelled to re-weight the findings of the consultation to reflect hidden support for demolition.

Mr Holbrook had earlier implied that it was mainly leaseholders who were asking for refurbishment, with tenants favouring demolition.

Mr Wolfe directed the court to a table of tenants’ views recorded by consultation firm Social Life, at workshops in November and December. He said: “What’s interesting is tenants’ views aren’t materially different in terms of their preference to those of homeowners. Tenants are still overwhelmingly in favour of one, two and three.

The suggestion that somehow homeowners want refurbishment options and tenants want regeneration options, is simply not sustained by this table.”

The court heard that looking at the over-all picture, at a November 7 workshop, 30 residents said full refurbishment was “very good” and only one said “very bad”. Some 33 residents rated full demolition as “very bad”, while only three said these options were preferable.

Regarding comments made earlier by Mr Holbrook about the Cabinet meeting being an opportunity for residents to get their views across, Mr Wolfe said: “That’s no substitute for compliance with the framework which Lambeth itself set in place. It’s simply not an answer.”

There was more laughter from the public gallery when Mr Wolfe added: “This also goes to the point about [the Cabinet members] having read it in the newspapers. The point of this process was to get residents’ views on relatively technical matters – finance, management options – and it was the responses to those things that should have been fed back to the Cabinet members.”

Mr Wolfe underlined his point that far from being “not pertinent”, as stated by the council, the discussions of the subgroups, which among other things were considering alternative funding structures for repairs, were “very much part of what needed to be fed back to Cabinet”.

The QC suggested that after regarding the views as being skewed in the wrong direction, the council then decided to “nobble the Cabinet” by leaving them out.

That’s plainly bad in law,” said Mr Wolfe. “Section 105 makes it clear that the decision-maker takes into account the representations.”

The barrister said it was one thing to provide a summary of the views, and another to “materially change the nature of what’s reported back”. “That in itself is a free-standing unlawful approach,” he added.

The QC went on to assert that Mr Holbrook had incorrectly drawn an inference from the notes of the first workshop, in which residents were complaining about repairs, that they were “anti option one”. “There’s nothing that says: “Please demolish our homes,” said Mr Wolfe. “You surely can’t read these comments as anti option one because that’s not the box they ticked when they went out.”

The barrister said that far from the council not agreeing to do a 30-year calculation, it had committed to that “many times”. He cited not just the document sent to residents which said it had in fact been done, but also notes of an October 27 project team meeting.

Theres a clear single aim,” said Mr Wolfe. “This is the way it was going to be done and this was the assessment that was going to be undertaken.”

Picking up on Mr Holbrook’s criticism of Ms Gniewosz that she conflated “process and outcome”, Mr Wolfe said: “There’s no evidence she did, but even if she did, so what? Her state of mind doesn’t excuse their illegality.”

He said the council is now arguing that: “In effect, we decided we weren’t going to do a 30-year NPV [Net Present Value] approach.”

But we see no reference to that change of approach,” added the QC. “At no point does Lambeth say: “OK people, we’ve changed our approach. They simply give a new answer on a completely unannounced basis.”

With regard to Mr Vokes’ claim that exercising the right to transfer the estate to the community is not a realistic option for the estate, the barrister said: “In other words, somebody has made a decision to rule that out and not include it within the evaluation and presentation. But the Cabinet doesn’t get to see that. Cabinet doesn’t know that.

They don’t even know that the resident management options group was progressing its own investigations into these very things. It may be right that residents might not want it in the end, who’s to say? It’s certainly not for him or the council to second guess that evaluation and rule it out at the start.”

He added: “It is for Lambeth officers to decide. Yes, but they have to comply with the obligations of fairness. It is plainly necessary for members to know about all the different things we have been through.”

The court heard how any claim of unlawful consultation brought after April 13, has an additional defence in that, even if it finds a decision unlawful, the court must refuse to quash the decision “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

Lambeth has argued that if it has to run the consultation again, it would be likely to make the same decision, particularly in light of government plans to reduce council rents. Mr Wolfe said his reading of the statute is not that it is “looking forward to what would happen if the decision is quashed”, but “looking back to what happened at the time”.

Mr Holbrook earlier cited the fact that Lambeth’s Overview and Scrutiny Committee examined the council’s eventual July decision to demolish the entire estate, following a call-in by a Green Party councillor, but found that the decision stood.

Mr Wolfe said: “This is simply looking again at the same material. If they look back at the same material they reach the same conclusion. The point is, what would happen if they looked at different material?”

The barrister referred the court to a passage in the council’s August 2015 call-in report, which stated: “If the Council is asked to consider the decision afresh then it is highly likely that the outcome would not have been substantially different based on the information available to the Council and the need to make a timely and reasonable decision.”

It would have been grammatically correct to state: “would not be substantially different”, the court heard.

The QC said: “It looks awfully like a back-covering exercise. Mindful of the ongoing judicial review challenge, it parachutes in the words of the statute without changing the tense.”

Oh yes,” smiled the judge, before reading the passage again with the correct tense substituted.

Revisiting the council’s claim about Ms Gniewosz causing difficulties with the consultation, which Mr Holbrook repeated, Mr Wolfe said: “He [Mr Vokes] doesn’t say she’s obviously and necessarily wrong. He makes the point about TMOs [tenant management organisations not making much difference because the homes are still within the HRA], but you have a large chunk of unchallenged evaluation. I don’t invite the court to evaluate the material – the point is, it’s unchallenged.”

Mr Holbrook also earlier claimed the judge should find against the claimant because there was a delay bringing the case, resulting in the council having already progressed its regeneration plans.

Mr Wolfe said the delay was in fact caused by the council, which in its initial response to the legal notice, claimed: “Your challenge is premature”, because the consultation was ongoing, giving the impression that all five options were still under consideration.

That response set a bit of a kerfuffle going, with the Legal Aid Agency saying: ‘What are you doing bringing a challenge then?’”

Lambeth eventually confirmed that options one to three were off the table, meaning the funding application could proceed.

Mr Holbrook claimed earlier that Lambeth had also progressed on its March decision, by leaving properties empty when tenants move out. This allowed Mr Wolfe to now make the point that the council has left six flats empty in Crosby Walk for more than 16 years.

Mr Wolfe also referred to the witness statement of another resident representative on the project team, Tom Keene, who confirmed that no significant steps had been taken by the council in furtherance of its regeneration agenda.

Mr Wolfe also attempted to address a limited number of the wider arguments offered by Mr Holbrook, but the judge intervened, saying: “I’m not sure where these points go.”

I’m not sure either but I wanted to clear them up,” said the QC.

Mr Wolfe explained: “Nicholas Greaves was the person who expressed concern about leaseholders being over-involved. He appears not to be involved in any other working group himself. It’s a little bit of a bold complaint from him.”

Gerlinde is the co-chair of the TRA and she’s a member of the project team. She was specifically asked by the project team to be on the financial viability subgroup. So you can hardly complain about her being on that group.”

The QC, acting for Eva Bokrosova, a tenant of the estate, asked the court to quash the decision and give residents “the lawful opportunity of which they were deprived”. He added: “We say very clearly – something has gone very clearly and radically wrong.”

The hearing, which took place on November 3 and 4, adjourned pending the judge’s decision, to be delivered at a future date.

The council denies two grounds of claim that the decision was unlawful and the case continues.

Court Report Part Two: Judicial review hears Lambeth Council downplayed voice of opposition to demolition

Lambeth Council confessed at the High Court to downplaying the voice of opposition in a consultation on the proposed demolition of 300 homes.

The local authority justified manipulating the consultation results as a means of neutralising strong feelings that it claimed were “skewing sentiment” on the housing estate, the court heard.

Most residents who responded to the consultation supported refurbishment of the estate, but the council gave “little weight” to those opinions in an effort to balance them with the supposed views of those who had not taken part, it was said.

Lambeth launched a consultation on the future of Cressingham Gardens estate in Tulse Hill, south London, in September 2012, as a result of a legal requirement for council homes to be brought up to the Decent Homes Standard.

During protracted questioning by the judge Mrs Justice Elisabeth Laing, Jon Holbrook, defending, admitted the council “developed” how resident opinion was presented.

The judge had asked him: “Is your submission that Lambeth set out a process of consultation and then when it got the feeling it wasn’t going the way it wanted to, it decided to change it?”

Eva Bokrosova, a tenant on the estate, is challenging Lambeth Cabinet’s “unlawful” decision on March 9 this year, to pull the plug on options one to three – the “refurbishment options” – without doing the promised financial analysis and without properly taking account of the results of a series of workshops, including ones looking at ways of funding the repairs.

David Wolfe, QC, for Ms Bokrosova, has asked the judge to quash the decision, which would require the consultation to be run again.

Lambeth Council regeneration boss Neil Vokes accepts the council cut short the consultation, but local authority lawyers claim that as the decision-maker, it was entitled to take a view on affordability, after allegedly realising the cash was not available for the refurbishment options. Lambeth denies that action was unfair or unlawful and further denies failing to “conscientiously take into account consultation responses”.

Mr Holbrook, for the council, told the court the estate was put into the regeneration programme in 2012 because of a £56m shortfall in the borough-wide Decent Homes Programme refurbishment fund.

The barrister referred to a document entitled “Strategic Delivery Approach” from that time, describing the “wider benefits” of new homes that meet modern standards and the potential opportunities to increase housing density.

The barrister claimed Cressingham was expensive to maintain, with many properties in poor condition, adding: “The bases that exist to this day and make it an attractive proposition for regeneration are the same that existed in 2012.”

Another document entitled: “The Case for Action”, recognised how Cressingham is a “popular estate” and the “majority like living there”. Mr Holbrook added: “The problem is that a significant number of residents live in properties that are not decent. Simply refurbishing the estate is not the answer.”

The barrister claimed that in December 2012, the council wrote to residents advising them that £3.4m was unlikely to be enough money to bring the homes up to standard. “Much of what he [Mr Wolfe] has said to you about residents not being aware of the costs and financial issues is something Lambeth can not accept,” said the barrister.

He claimed one of the first examples of the effectiveness of the project team, set up for elected resident representatives and council officials to scrutinise the issues, was the commissioning of the “Tall survey”, a report on the repairs needed.

Describing the project team meeting, Mr Holbrook pointed out that “the claimant wasn’t there”, while Gerlinde Gniewosz, a resident representative on the project team who owns a flat on the estate, was present.

Addressing the accusation that it was cost rather than affordability that was eventually discussed, the barrister said: “It was obviously important to agree how much refurbishment would cost. Until there’s an agreed figure, it’s not going to be possible to decide if it’s affordable. It was not necessary to commission an independent report on [homeowner] buyback costs because these would change when it came to it.”

One of the concerns raised by Ms Gniewosz, who is a qualified accountant and has a Masters in Business Administration from Harvard Business School, was that the council was undervaluing the homes and therefore painting a false impression of costs.

To facilitate answers to the number of questions being asked about the finances, the council set up a dedicated “financial viability subgroup”. The barrister said: “It became clear to Mr Vokes that there were so many challenges coming from Ms Gniewosz that the whole process was fraught with difficulty from the outset. That’s why he thought it would be helpful to have a much smaller group, so that ultimately the three QS’s [quantity surveyors] could get into a room and try to agree the cost of refurbishment.”

Mrs Justice Laing inquired: “It’s important to agree the assumptions?”

Mr Holbrook replied: “There comes a point at which a consultation ceases to be a consultation and is more concerned with resident-led decision-making. It’s another thing to be constantly challenged and Lambeth would say, by a very small number, and one significant one. It became very difficult to conduct the consultation in the circumstances. Yes you do need to agree the buyback costs. The point I’m making is the whole process becomes slow and fraught with difficulty. Lambeth went to great lengths to try and agree that. It paid for residents to commission their own report on refurbishment from Simon Morrow.”

The court heard later that in fact Mr Morrow was instructed by residents and provided his quantity surveying services for free, entirely outside the council commissioning process.

Mr Holbrook insisted that refurbishment would mean “all that money has to come either from the HRA [Housing Revenue Account] or borrowing”. He added: “Lambeth had reached its ceiling. That posed Lambeth a difficult problem.” But he said that by setting up a Special Purpose Vehicle (SPV), a company into which the estate would be transferred: “Lambeth can attract private investment. This I believe this is a fairly standard way of raising investment for redevelopment.”

The barrister then read out an excerpt from an email written by ward councillor Marcia Cameron, describing how in October 2014 there was a protest involving “60-70 residents marching down the hill banging drums and shouting”.

Mr Holbrook added: “The only point I’m making about this is that from the outset this was always a very sensitive issue. It’s politically sensitive. Indeed, Ms Bokrosova notes this march even made the ITV news that evening. This was a high profile protest. Lambeth doesn’t accept that councillors didn’t know how some residents felt. It goes some way to explaining the difficult decisions.”

The court heard earlier how residents were explicitly told there was no fixed budget allocation, and that far from £3.4m being a cut off point, various funding options were under discussion. Mr Wolfe, for the claimant, earlier pointed to evidence that the £3.4m figure – which the council appears to claim was as a “provision” against which affordability was being measured – was always presented to residents as an “initial cost estimate”.

The description of £3.4m as a costing was twice confirmed in writing, first in a response to a freedom of information request in March 2013, and again in an email from Sue Foster OBE, executive director for housing, regeneration and environment.

Mr Holbrook said a council-penned letter was sent to residents early this year, “indicating Lambeth was preparing the ground to drop unaffordable options”.

The judge remarked: “I don’t understand that analysis because why wasn’t it known that none of the refurbishment options were affordable? What changed?”

Mr Holbrook said: “There were two unknowns. One was how much it would cost.”

The judge said: “It was never going to be less than £3.4m was it?”

One of the points about consultation is that in involving residents there’s an attempt to try and get them to understand what the figures are,” explained the barrister. “If residents are saying it’s going to cost £7m and Lambeth is saying it’s going to cost £12m…”

The judge persisted: “Even if they did agree, they were never going to agree a figure that was less than £4m. What changed between October 2014 and March 2015?”

Mr Holbrook said: “The second unknown was how much money was going to be available. That’s why Mr Vokes refers to getting the business plan update in February 2015. They weren’t going to be able to get more than £4m from the HRA and would need some other sources that Mr Wolfe refers to.”

The judge inquired: “So you accept that money could be available from other sources apart from the HRA?”

The lawyer said: “The claimant has made much of the green retrofit. That might have made properties better for the leaseholders but it would not change the cost.”

The court has heard how a green retrofit could make properties more energy efficient, attracting grants for the refurbishment.

Mr Holbrook turned to receive instructions from Mr Vokes, who was blushing ever more deeply as he sat in the well of the court. “Mr Vokes says that it wasn’t possible for Lambeth to increase its borrowing because that had been capped and it had reached its ceiling, but what was an option was taking more money from the HRA and spending it on the estate,” added Mr Holbrook.

The judge responded: “So you’re now accepting that there are other sources of funding?”

After turning to consult Mr Vokes once more, the barrister replied: “It may have been possible to get money through the green retrofit, depending what grant was made available.”

Mr Holbrook claimed there was an “urgent need” to help “vulnerable people living in substandard homes”.

The barrister said one thing that changed was the refurbishment costs: “We can see the figures coming down,” to which the judge remarked: “It’s actually going up from £3.4m.”

Addressing the claim that the promised Net Present Value [NPV] calculation wasn’t done for comparison of the options, the barrister said: “The reason why Lambeth didn’t do NPV on options one to three, is because they knew it wasn’t affordable.”

Identifying a reference in the papers to “Other government money”, the judge asked: “What would that be?”

Mr Holbrook replied: “For additional affordable homes to be built. It wasn’t anticipated there would be more money for refurbishment.”

But the judge said that in an information pack to accompany the workshops, the council stated that for option one to be considered, it would need to look at “finding alternative funding sources”. “My question is, ‘funding sources’ – what’s it referring to?”

Green grants,” replied the barrister.

The judge said: “I’m just trying to get clear what your case is.”

Mr Holbrook said: “This was at the outset of the consultation so Lambeth was keeping an open mind.”

What might those have been?,” repeated the judge.

Mr Holbrook said: “I’m not sure … 6th November… residents always knew option one was going to be a big ask.”

But not such a big ask that they weren’t going to be consulted on it?” suggested Mrs Justice Laing.

Mr Holbrook said: “Of course that’s the nature of consultation, M’Lady.”

The barrister described how the remaining “demolition options” four and five, were thought to be affordable in March, but by July only option five – “comprehensive redevelopment” made the grade. Previously, that option was the one that the council named as least likely. Reading from the resident information pack, Mr Holbrook said: “It is unlikely five will be supported by local people. This option shows a significant deficit. This option is clearly unaffordable.”

Mr Holbrook added of the u-turn: “That was the information that they had at the time.” But “Lambeth was always making it clear that it may stop the consultation on any options that were shown to be unaffordable or not deliverable.”

The judge said: “It could be a bit clearer. It could just say: ‘By the way if we find that something isn’t affordable, we’ll pull the plug.’”

Yes it could,” agreed the barrister.

Reading from notes collated by Social Life, employed from summer 2014 to gather residents’ opinions, Mr Holbrook suggested: “There are many residents who recognise that refurbishment is unrealistic.”

The judge said: “A consultation isn’t a referendum. I don’t think all opinion favoured refurbishment, but that’s not the basis of the argument …they’ve either got good points or bad points …that [how many people are for or against] is not what this case is about.”

No,” agreed the barrister. “But it does show how the local authority as the decision-maker has a very difficult job. It has to hear what the residents say, and it has to weigh them.

The lateness of the hour, 4.40pm, was pointed out to the judge who would normally have concluded the day’s proceedings by that time. She exclaimed: “Oh really? Time flies when you’re having fun. It’s a tribute to the compelling nature of your arguments, Mr Holbrook.”

When the hearing resumed the following morning, Mr Holbrook was keen to address “three preliminary matters” – the first being to correct his assertion about the residents’ quantity surveyor Mr Morrow being funded by the council. “He did the work on an unpaid basis,” interjected Mr Wolfe.

Mr Holbrook then moved on to address the eventual arrival of the elusive “show-stopping” analysis that the council claims led to the March decision.

Overnight, Mr Vokes had located a document entitled: “Briefing Note. Cressingham Gardens Full Refurbishment Affordability”, prepared by senior council accountant Julie Curtis and dated February 13 2015.

It was not the expected HRA business plan as referred to in Mr Vokes’ earlier statement, but a memo re-stating the refurbishment costs. Ms Curtis claims that there was “minimal or no scope for funding” from the HRA. Ms Curtis goes on to state there is “no provision” for the works from the Lambeth Housing Standard budget, the council’s borough-wide refurbishment pot.

In a further written statement accompanying the note, Mr Vokes apologised for not disclosing it sooner, claiming: “It was a case of me overlooking the document.” He blamed the oversight on the hundreds of emails he receives every day and his attention being spread across all six estates currently earmarked for “regeneration”.

The judge said: “What’s surely surprising is there have been three opportunities to produce it or if it wasn’t going to be produced in response to the FOI request, it is the council’s duty of candour [in these proceedings].”

Indeed, yes,” replied Mr Holbrook.

The judge later observed that if a document were so important, she would expect it to have been filed away safely.

Mr Holbrook requested to move on to written submissions, because: “I do think it’s important to focus on what’s actually alleged.”

He challenged the claim that the Cabinet did not conscientiously take into account residents’ views, telling the court: “Lambeth denies this because the residents’ views were presented to the Cabinet. The table [summary of resident opinion produced by Social Life] is the result of the consultation exercise. Indeed they were shown there was majority support of viable refurbishment options.”

The court has heard how the feedback from the subgroups was omitted from the Cabinet report, and how the council claimed the content was “not pertinent” to the decision.

Mr Holbrook added: “Eight residents did come to the [March Cabinet] meeting and they were each given three minutes. Moreover we do see Ms Gniewosz’s speech which she made to the meeting.”

Mr Holbrook said that during the meeting, Cabinet member for regeneration, Councillor Matthew Bennett, outlined the Labour administration’s pledge to build 1,000 extra homes, and underlined the claim that it was: “Not affordable to refurbish due to budgetary cuts by the UK government.”

Referring to Ms Gniewosz’s speech, which sought to highlight the mistakes she perceived the council was making, the barrister said: “Essentially this is the difference between the two parties. Different residents are entitled to have their own different and indeed strongly held views.”

The judge said: “I don’t think that’s in dispute.”

My point is consultation is a process. It culminates with a Cabinet decision. It is not necessary for the Cabinet to have all the reports of all the consultation meetings that have taken place. It would ossify council process if that were taken into law.”

You can’t have it both ways,” said the judge. “If the consultation is to consider the representations made, albeit in summary, they have to be reported to the Cabinet. If they’re not reported then it can’t be taken into account.”

My Lady can I deal with that later on,” said Mr Holbrook, before moving on to describe the significance of news reports of the issue in the South London Press.

The judge said: “What does the fact that the matter made it into the South London Press have to do with the legal issues in this case?”

It goes to the issue of what the Cabinet members knew when they took the decision on 9 March,” said Mr Holbrook. “This had been for many months a high profile matter.”

The judge said: “Do we know that all the Cabinet members read the South London Press?”

Mr Vokes says Cabinet members saw it,” replied the barrister. “Cllr Bennett could have made his decision himself but it was made by Cabinet….all the Cabinet members knew the issues. Two ward councillors are well aware of the strength of feeling and they spoke at the Cabinet meeting.

Lambeth was entitled to conclude that the consultation process was being skewed to those opposed to the redevelopment.”

The judge asked: “Where in the report does it say the consultation is being skewed in favour of those who were opposed to redevelopment?”

Mr Holbrook replied: “It is a matter for Lambeth what information it puts before the Cabinet. If it sees that certain sectors of the population are being disproportionately [represented]…”

The judge interjected asking if Mr Vokes dealt with this point in his witness statement and the barrister pointed to a paragraph in which Mr Vokes states: “The Council was concerned that the strength of feeling against redevelopment held by the Save [Cressingham Gardens] campaign was skewing sentiment amongst residents so that those who supported redevelopment felt less inclined to say so.”

Growing impatient, the judge said: “I’m not sure I understand what your case is …I thought you were going to show me material that showed how Lambeth decided in relation to the March decision to give little weight to those who were opposed [to redevelopment].”

Mr Holbrook began: “Those passages talk about increasingly vocal…” But the judge decided: “They don’t lead anywhere.”

What, My Lady? There were many people who were involved and there were many people who were not involved [in the consultation].”

Yes,” agreed the judge, “But it was Lambeth’s idea to have a consultation structured in this way.”

That’s a very important point about Lambeth being the decision-maker here,” said the barrister. “Lambeth’s entitled to form that view that it is the perspective of the minority that’s being represented at the workshops.

He added: “Lambeth, over a period of time, is realising that the views which are being predominantly expressed at the workshops are not necessarily reflective of the whole body of opinion across this estate.”

The court has heard how after striking off the refurbishment options, Lambeth carried out a test of opinion – but only asking residents their opinions on the two remaining demolition options.

The judge asked: “Is your submission that Lambeth set out a process of consultation and then when it got the feeling it wasn’t going the way it wanted to, it decided to change it?”

It developed it,” replied the barrister.

The judge reminded Mr Holbrook of the agreed order of things being first workshops, then a test of opinion, then the Cabinet decision.

What Lambeth has always said… I accept this has all got confused,” said Mr Holbrook.

The judge said: “If you look at the information pack the documents in autumn show a series of workshops and then a test of opinion.”

Mr Holbrook insisted: “What’s clear was that the test of opinion would be on affordable and deliverable options – that’s what Lambeth did, having narrowed it down to two options.”

The court then heard how Nicholas Greaves, a resident representative on the project team and a tenant on the estate, complained that the subgroups were “dominated by leaseholders”.

Court papers however show that both homeowners and tenants including the claimant, signed up in roughly equal numbers, while Mr Greaves did not join any subgroups.

This is one of the difficulties for any local authority,” continued Mr Holbrook. “The interests of tenants may differ from those of leaseholders. That was a statement made by one of the tenants’ representatives …Ever since the Save campaign was set up…”

I’m still not understanding how this submission relates to the grounds of challenge,” the judge remarked.

What I understand is, what’s challenged is not enough weight was given to the views of the Save campaign,” said the barrister. “The reality was that the residents’ views, no matter how strongly made and expressed, couldn’t make the refurbishment affordable …It was for Lambeth to decide how to take residents’ views into account and having regard to that, the Cabinet process wasn’t unlawful.”

Mr Holbrook said in his second grounds of challenge, Mr Wolfe’s “first argument is to say residents weren’t given a 30-year calculation”. The council’s barrister claimed Mr Vokes was clear from 2013 that: “Lambeth didn’t commit to this regarding unaffordable options.”

This contrasts somewhat with Mr Vokes’ emailed confirmation from October last year, that NPVs would be carried out to provide a “comparable baseline” for the options residents would be discussing at the workshops.

Mr Holbrook went on: “Cressingham Gardens met the three criteria for regeneration. Lambeth residents weren’t taken by surprise by the letter from Cllr Bennett in February 2015. If they didn’t have money in year one, there’s no money for refurb in year two, as a simple matter of logic. I submit it’s absurd as a matter of law, even if it had committed to doing something, if the basis could be shown to be pointless. Consultation is about process, not outcome. Yet Ms Gniewosz fails to make this distinction.”

Mr Holbrook said on February 27, Ms Gniewosz was “unhappy because the council had ruled out refurbishment options”. The barrister added that the consultation process should not be considered a bad one “merely because the conclusion isn’t one you agree with”. “In my submission, Ms Gniewosz was always going to be critical of the outcome,” he said.

The judge commented: “But it could be said that there is a difference between concluding an option was unaffordable without going through the process you have agreed you would go through, and concluding that an option is unaffordable after you have gone through the figures.”

She challenges the consultation because it’s ruled out refurbishment,” insisted Mr Holbrook.

He added: “The next accusation is this figure of £9.4m [one of the costings for refurbishment] had not been subjected to lawful consultation. The accusation that residents had not been given the opportunity to comment on the £9.4m figure is patently wrong as Lambeth had spent considerable effort trying to agree the cost of refurbishment with residents. Residents were involved in commissioning the Tall survey.”

Mr Holbrook said a breakdown of three costings was also included in the Cabinet papers, and added: “With the greatest of respect it can’t be said that this consultation on the £9.4m figure was a sham.”

He continued: “There’s nothing any section of the leaseholders can say to make the refurb come back on the agenda.”

Turning to the claim that at the time of the decision, residents were still waiting for the “key information to evaluate affordability”, Mr Holbrook said: “Lambeth can’t be expected to respond to such a non-specific ground. If you say there’s key information that should have been provided, then spell it out.”

We were shown several emails from Ms Gniewosz requesting the information,” said the judge.

Mr Holbrook said: “Although Ms Gniewosz asked for more financial information, NPVs, these weren’t done by Lambeth. She was asking for information about a process it decided it wasn’t going to do. She was asking for information that never existed because Lambeth didn’t do it. This is not a case of Lambeth has withheld information in a consultation, it’s for Lambeth to decide what documents to provide.”

The judge said: “So why didn’t Lambeth say a lot earlier in response to requests for NPV calculations – we’re not going to do them?”

That’s a fair point,” concurred Mr Holbrook. “That’s Mr Wolfe’s best point. But you can’t say it’s unlawful in a consultation process not to expressly say: ‘We’re not going to give you these documents’.”

Asked by the judge about the relevance of the case of Moseley, heard by the Supreme Court last year, Mr Holbrook said: “Yes, we have to engage with legal principles,” said Mr Holbrook.

Mmm,” said the judge.

Mr Holbrook insisted there was good reason to rule out the refurbishment options, despite ongoing discussions by the green refurbishment and resident management subgroups, which were looking at alternative funding sources and structures provided by the right to manage, or by exercising the right to transfer the estate into community ownership.

That’s not a basis for saying Lambeth’s ruling out of options one to three was unlawful,” said the barrister.

With regard to the right to manage, this wouldn’t resolve the funding issue, because the properties would remain within the HRA,” he claimed.

Reading from Mr Vokes’ witness statement the barrister said: “Ms Gniewosz had her own views about what assumptions should be made and hence what the NPV models would look like.

NPV assumes the residents would want to take control of the estate. Tenants in my experience take comfort in council ownership and leaseholders would face significant service charge demands.”

Mr Holbrook added: “I haven’t looked too closely at the regulations but it’s something they [residents] will have to discuss with the government.”

Referring to the shift in treatment of option five between November and March, Mr Holbrook said: “Option five did become viable. Yes, if someone wants to say this consultation should have had a narrower focus from the beginning, but that’s not an argument for quashing the decision and saying it should be run again.”

The judge said: “I don’t think he [Mr Wolfe] is saying it should have been run with a narrower focus. Are you anticipating something you fear he is going to do?”

He [Mr Wolfe] didn’t mention his grounds yesterday he just gave a narrative,” said Mr Holbrook.

Mr Holbrook then expressed concern over the tactical risks of raising the spectre of the judge finding the council’s conduct unlawful, by addressing the question of whether the outcome would have been “different had the conduct not occurred”. “I don’t think I’m on a sticky wicket,” quipped the barrister. “I say refurbishment remains unaffordable.”

Mr Holbrook highlighted Mr Vokes’ point that council finances will be further tightened by a 1 per cent year-on-year reduction in council rents, announced in Chancellor George Osborne’s July budget.

The barrister said of Ms Gniewosz’s analysis of the amount of money the council could borrow: “She’s not an expert. She’s misreading that document.”

The barrister added: “Even if we assumed that Lambeth had a windfall of say £10m it may decide not to spend it on Cressingham Gardens, at least not on refurbishment, because that would still mean Lambeth would be spending a disproportionate sum of money on residents of this estate. Green grants and right to transfer aren’t going to cause Lambeth to change its mind.”

The case, heard on November 3 and 4, continues.

Read Court Report Part 1