Cressingham Gardens responds to London Mayor’s consultation on ballots…

Question 1: Do you agree that the GLA should make resident ballots a funding condition for estate regeneration schemes?

Yes

Question 2: Do you agree with the proposed criteria that would trigger the requirement for a resident ballot? Why/why not?

The language of the consultation document does not make clear what the proposed criteria are, as there is no section headed ‘Criteria’. For the purposes of this response, we assume that the section “Requirements for resident ballots” covers the criteria.

However, assuming what we can determine are possibly the proposed criteria, we do not entirely agree:

  1. The funding condition of a ballot should be applied to all estate regenerations that are pre-planning approval stage, including where “contracts” have been purportedly been signed (see comments and arguments in response to question 14).
  2. Trigger should be where any homes are being demolished, not where at least 150 homes are being constructed.  Very unfair on the scenario where say 140 homes being demolished and 149 being built. The proposal is just setting a structure/mechanism that will be abused.
  3. Unclear whether in section 3.3, “affordable” home also refers to secure tenancy homes that have been converted to temporary accommodation.  It should cover all homes that were at any stage secure tenancy homes to stop local authorities modifying the tenancy in order to get around the rules.
  4. The information should include the proposed planning documents/submission, as well as further appropriate supporting detail, and there must be a legally binding guarantee that the offer to residents on the table is the (non-variable) offer. Should the scheme change (eg any reduction in number of homes for council rent, any reduction in amenity, change in offer to residents to their detriment, etc), there  should be a further/second ballot held and if any funding was already drawn down by the local authority those monies are to be immediately paid back if the ballot result is a ‘No’.

Question 3: Do you agree with the proposed scope of resident ballots? Why/why not?

The consultation document is quite vague as to the scope, and would allow extreme abuse by local authorities who are looking for legislative loopholes to operate through.

There is no mention about the financial impact on residents. Information must be clearly provided to all residents about the possible financial impacts on their personal circumstances.  Tenants and homeowners should be fully informed about the financial risks of regeneration, and the range of financial impact should be detailed clearly in the offer documents. For example, the rebuilt homes on Cressingham Gardens will be more expensive for both tenures. Current secure tenants can expect to pay up to 25 per cent higher rents due to the manner in which ‘council rents’ of new homes are calculated based on market values. Current leaseholders will have to find between £100k and £300k more per property to retain a leasehold on the new property, as well as service charge increases. All tenures can expect higher council tax following revaluation, and to be tied into uncompetitive energy contracts for decades that they cannot switch out of.

The offer document must highlight the other negative impacts on residents.  For example, if leaseholders are forced into shared ownership, they must be made aware of the change in their rights:

  • That there is a serious risk that they may not be able to port their mortgage or get a new mortgage, and that the local authority in the case of Lambeth council has refused to be a “lender of last resort”;
  • That there are constraints on being able to re-mortgage their property (and hence potential financial insecurity) going forward under shared ownership;
  • That if they have to pay rent going forward, that they will be paying rent for the rest of their lives including into retirement;
  • That they are no longer homeowners, but rather tenants under law and can be evicted for ASB with no compensation for the ‘equity’ component;
  • etc

The GLA should develop a template / example version of the offer document with the necessary detail, otherwise local authorities will do the minimum and may deliberately  mislead residents (there is historical precedent from many of the local authorities the Mayor’s remit covers). For example, there is very little of the important detail ever included in documents sent out to residents by Lambeth council and often worded in a manner that would mislead residents.  The latest document to leaseholders from Lambeth council is absolutely shocking in the lack of detail, with residents having to wade through cabinet reports to see what is supposedly going to be their rights, but obviously not clear what will or will not be implemented.

Question 4: Do you agree with the proposed stage in an estate regeneration process at which ballots should happen? Why/why not?

It should definitely be done prior to any planning application. This would save local authorities a considerable amount of unnecessary expenditure

As to when before planning, there are two options, with our preferred option being clearly (2) as described below, as (1) does not offer sufficient information for informed resident decision nor provide sufficient guarantees and security to residents:

  1. We Object: Before development team/master plan

The advantage for the local authority is that they will not be incurring the costs of the development management team if there is no support.  However, it is very hard to ensure that they will actually deliver on what was promised at such an early stage.

For example, Lambeth council cabinet approved the demolition of the Westbury estate with the clear statement that they would be delivering 150 additional homes at council rent.  However, the planning application submitted was for only 3 additional homes at council rent. This over-promising and under-delivering is rampant in Lambeth: South Lambeth was supposed to deliver over 100 additional homes at council rent, but now only 21; Knight’s Walk 25 additional homes at council rent, but planning submitted for a mere 10 additional. It is also a problem in many other local authorities in London – as exemplified in the debacle of the Heygate estate, where several thousand social homes were demolished, to be replaced by fewer than 100.

Residents will need some very strong rights legislated to force the necessary transparency in order to check what is being proposed, compared to the promises made by the local authority.  Also, there is a question as to how residents can compel the GLA to act upon any agreements. For example, in the template GLA contract, the GLA has removed the Third Party Act, thus consciously or unconsciously disempowering residents.  The FOIA works too slowly to get data prior to decisions by local authorities, leaving only the judicial review route, which only looks at process rather than the substance of decisions.

2. We Agree: After master plan but just before planning submission

Ideally, it should be done after the master plan, but before planning application is submitted.  Only at this stage is there enough information for residents to make a truly informed decision and to know that there is a better chance that their local authority is not going to go back on all their supposed guarantees and promises (something that will still be possible through planning amendments).

Knowing that residents could vote “No” to the masterplan, should also help ensure that the development team properly listens to residents, and designs something that is suited to the community, rather than suited to the maximisation of income.

If residents do vote “No”, then it should be binding on the local authority for 5 years.  It is grossly unfair on residents to have to keep engaging with local authorities over the future of their homes, as it is a very time consuming process and has many negative consequences to family life.

Question 5: Do you have any other comments on the threshold, scope and timing of resident ballots?

The ballot should also apply to estate regenerations that the GLA have signed off funding contracts during the past few months.  There has been absolutely deplorable behaviour by the Mayor and the GLA with regard to his sub rosa signing of contracts, and there is zero trust now in the Mayor or the GLA.  Residents of Cressingham Gardens contacted the Mayor’s office in August 2017 requesting a meeting, but we were told that the Mayor was extremely busy and couldn’t meet with the democratically elected residents representatives over the subsequent months.  In a FOIA response in October 2017, the GLA confirmed that no contracts had been signed with Lambeth. This appears to have been a lie, given that a contract had been signed with Lambeth for Westbury, Knight’s Walk and South Lambeth estates in September 2017.  Residents announced a protest march requesting a ballot on November 2017 for 2 December 2017. A further FOIA response in February 2018 simply referred back to the previous FOIA response in October 2017. We are thus very saddened and angered to discover through another FOIA response that the GLA had secretly signed a contract with Lambeth on 1 December 17.

We will be happy to work with the Mayor to see how the contracts his office have signed over the past few months can be amended or terminated.

Question 6: Do you agree with the proposed eligibility criteria for resident ballots? Why/why not?

We do not agree with the proposed eligibility criteria as currently outlined:

1. Requiring homeowners to have lived for at least a full year before the ballot denies many residents for whom their property is their primary home a vote, even if they have recently moved in (estates typically have the most affordable housing in their areas and thus there are very few options to buy off an estate for such residents)

Furthermore, it ignores the following example situations:

    • Residents who have temporarily moved out to look after elderly parents or other relatives
    • Not all families can afford the step up in market value to buy a larger home when needed.  Consequently, there are families who have moved out of say the family home (1 bed flat) due to insufficient number of rooms and are renting a larger home.  They have kept the original home as the sole family home and propose to move back in once the children move on.
    • On estates, many of the homeowners are marginal homeowners and work within the freelance / contracting industries.  Thus, many of them are required to live elsewhere for periods of time due to work.

Consequently, we believe that all residents that have lived in their home at any point in time should get the vote, as this ought to screen out the ‘buy-to-let’ landlords, whilst not disadvantaging the residents who consider the home as their primary home even if not living in it for a full year prior to the ballot.

2. All private tenants having lived on the estate for more than a year ought to get a vote, not just those on the housing waiting list. Private tenancy is one of the most insecure tenancies and have the least rights and protection with regards to the regeneration.  If the GLA is going to insist that they they are on the housing waiting list, then there must be a requirement that the local authority is required to assess whether they would be eligible to be on the housing waiting list prior to the ballot. There are many reasons why a private tenant might be eligible to be on the housing waiting list, but is not on the list.

Question 7: Do you agree that eligibility criteria should be the same for all schemes? Why/why not?

Yes.   At this moment we cannot think of any circumstances when a certain type of scheme should get an exemption from the rules.

Question 8: Do you agree with the Mayor’s proposed requirements for implementing ballots? Why/why not?

We do not agree that an independent body should merely ‘supervise’ the ballot.  We believe that the independent body should be required to take a more active and accountable role:

  • Carry out the ballot
  • Ensure that the materials presented to residents are both truthful and not misleading
  • Make available appropriately qualified independent advisors (ie accountable to residents and not to the council) to answer any questions from residents about the implications of the proposals (e.g. legal, financial, language support etc)
  • Report any incidents that they become aware of where the local authority has  unfairly pressured or taken advantage of individual residents to vote in one way or the other (eg free from threats, whether direct or implicit).  Any ‘visits’ by council officers to vulnerable residents to be recorded as recommended recently by the Commons Works and Pensions Select Committee in connection with disability assessments.

In order to demolish an estate, there must be a majority of the residents voting ‘Yes’, not just a majority of the voting residents.   We have seen too often where Lambeth council has undertaken / attempted to undertake consultations during holiday periods when many residents are not around.  By requiring a majority of residents to vote ‘Yes’, not just a majority of those voting, it will remove the temptation to run ballots during the holiday periods when many residents are away.

Question 9: Do you have proposals for other potential Mayoral requirements for implementing ballots?

There should be a requirement for local authorities seeking funding, that they present a fully-scoped and costed – as audited by an external independent body – scheme that does not have future flexibility on volume, housing residency split and other important factors written into it. Too many developers, including local authorities, use such flexibility to the detriment of current residents, using vague terminology such as “like for like”.

The fully-scoped and costed proposals should be made public so that residents can review.  It is totally unacceptable for the GLA and local authorities to hide behind an excuse of ‘commercial sensitivity’.  For example, releasing approximate build costs in any viability statement will not impinge on any tendering process if there is a competitive market.  (Clyne vs ICO) and thus should not be subject to commercial sensitivity claims.

Question 10: Do you agree with the proposed exemption where the demolitions are required to deliver an infrastructure scheme? Why/why not?

No.  The majority of residents will vote in favour of demolition if what is being proposed and offered provides them with the security of an equivalent home (as would be considered equivalent by the residents, not as per planning jargon) and a protection of rights.  The problem with most demolition developments, they do nothing for the current residents and all too often are detrimental to them. We believe if local authorities truly worked with communities a ‘win-win’ solution can be found and the local authority will achieve a Yes vote.

Question 11: Do you agree with the proposed exemption where the demolitions are required to address safety issues? Why/why not?

No.  Local authorities will abuse the definition of ‘safety issues’, and create a situation that could be down to their own shoddy repairs and maintenance.  What will stop a local authority creating a situation where they for example refuse to do roof repairs leading to an unsafe circumstance in order to avoid a ballot.  This exemption would actually endanger current residents.

Again, as responded in question 10, if there is an honest discussion with the community, then the majority of the community will vote Yes.

Furthermore, if there is truly an urgent safety issue, residents would need to be evacuated straight away into temporary accommodation.   In any case, why shouldn’t there be a ballot of Grenfell residents as to what should be done going forward with their homes?

Question 12: Do you agree with the proposed exemption where a specialist or supported housing scheme is being decommissioned by a local authority? Why/why not?

No. Again, as responded in question 10, if there is an honest discussion with the community, then the majority of the community will vote Yes.

Question 13: Do you have proposals for other potential exemptions to the proposed funding condition?

No.  We can’t think of any possible exemption.

If all of the residents were not able to exercise their vote, then we believe in this circumstance the legal guardian/proxy should be allowed to vote on their behalf and in their best interests.

Question 14: Do you agree with the proposed transitional arrangements? Why/why not?

We totally object the proposed transitional arrangements.

In Sadiq Khan’s election manifesto in 2016, he wrote:

“Require that estate regeneration only takes place where there is resident support, based on full and transparent consultation, and that demolition is only permitted where it does not result in a loss of social housing, or where all other options have been exhausted, with full rights to return for displaced tenants and a fair deal for leaseholders.”

Subsequently, in the GLA’s Affordable Housing Funding Program document issued November 2016, it was clearly stated:

“Estate regeneration

94. The Mayor is developing a Good Practice Guide to Estate Regeneration, which will set out good practice in relation to landlord aims and approaches, consultation and engagement, and offers to tenants and leaseholders that the Mayor expects to see in estate regeneration projects. Providers who bid for grant to deliver estate regeneration will need to contractually commit to these standards for their estate regeneration projects.”

Thus, it should not come to the surprise of any local authority that resident ballots would be required.  Indeed, any local authority that bid for the latest round of GLA funding (2016-21) were made aware upfront that they would be contractually required to meet the estate regeneration guidelines set down by the GLA.  The fact that they GLA is trying to avoid residents ballots now for the next 3 years worth of estate regeneration makes a complete mockery of this consultation and residents’ expectations. Only a ballot can provide appropriate evidence that there is majority resident support.

To be very clear, there should be no transitional requirement for any contracts signed under the 2016-21 GLA funding program.

The GLA has been signing contracts with local authorities throughout 2017 and 2018 during the various consultation periods in connection with estate regenerations that do not evidence resident support, such as Cressingham Gardens.  This shows the lack of due diligence on the part of the GLA and reinforces some of our concerns over whether the GLA has appropriate skills / experience to enforce this funding ballot, let alone the poor estate regeneration guideline document that has been issued.

Whether or not the GLA does decide to renege on its own policy and deny ballots, there must be full transparency over the contracts signed with the local authorities.  To date we have been denied access to the contract signed with Lambeth council and to any of the due diligence performed by the GLA. The fact that the GLA now wants to be able to make further exemptions on a case by case basis and provides no definitions as to what would be considered a ‘significant change’, provides further evidence that this is just a white-wash by the GLA.  It would appear the GLA has no intention of giving any residents a meaningful say or influence or input into the future of their homes or community.

To read the full consultation document issued by the GLA, click Estate Ballot Consultation document

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Cressingham Gardens demands after Mayor’s U-turn: “Pause regeneration plans and ballot us!”

Cressingham Gardens residents are calling for Lambeth council’s regeneration proposals to be paused following the Mayor of London’s U-turn on mandatory ballots.

Residents believe the council should halt the scheme while the Mayor’s consultation is ongoing.

cressingham-gardens-march-2017-28
Cressingham’s “ballot us” protest outside Lambeth Town Hall in December
(c) Mike Urban / Brixtonbuzz.com

The local authority is consolidating its plan to spend tens of millions of pounds of public money on the demolition scheme, despite these new uncertainties.

“Given the increasing political debate around privatisation of public housing, compounded by the mayor’s announcement, our Labour council should exercise some caution and put a hold on further spending on this £110 million scheme,” said Cressingham Gardens resident Andy Plant.

In his Good Practice Guide to Estate Regeneration published last week, Sadiq Khan said he was: “requiring resident support through a ballot for new plans involving demolition where City Hall funding is involved”.

Shortly after the news, Lambeth council leader Lib Peck published a statement that ruled out a “retrospective ballot” of Cressingham residents.

The carefully-worded statement, claimed that the council has already complied with the principles in the guide, despite a ballot having not been taken. It also claims that residents continue to be ‘at the heart of decision-making’, and that Cressingham Gardens is already “in receipt of GLA funding”.

Residents strongly dispute Peck’s claims and highlight that details of the policy – and which estates qualify for a ballot – will not be finalised until after the conclusion of the consultation on  April 3.

The Greens’ London Assembly member Sian Berry, who has been supporting council estate campaigns, is pushing for this to include all estate regeneration schemes that have not yet received planning permission, such as Cressingham Gardens.

Design work has not yet commenced with the masterplanning team Mott MacDonald, contrary to the claim by Peck that the scheme is at an advanced stage.

With the devil in the detail, Peck could yet be forced to ballot Cressingham residents.

In the meantime, Mott MacDonald are about to host a ‘Pancake Day Launch Event’ tomorrow (Feb 13), which will initiate discussions with residents on designs for the proposed replacement housing development.

Mr Plant said: “This is flippin’ nonsense”

The designers are hoping that “free pancakes and children’s activities” will sweeten the chat with residents about demolition of their homes.

Lambeth council has signed a £6.7m contract with the company, with an agreement to pay out in phases.

Off their own backs, Cressingham residents put together an alternative People’s Plan which details a sympathetic resident-led upgrade of the estate, as well as offering up to 37 extra homes for council rent, which entails no unnecessary demolition.  This is more than double the number of extra council rent homes that Lambeth promises by demolishing all 300 homes.

Speaking more generally about the council’s ambitions to demolish swathes of the borough’s council homes and rebuild under a private company Homes for Lambeth, resident Tom Keene said: “The council says it has to demolish estates to make way for more housing, and that it cannot ‘do nothing’ in the face of a housing crisis.

“This presents a false dichotomy – residents are not suggesting doing nothing.

“On the contrary, they are doing a great deal to try and help.

“Their option may not be as grand, but it is far less risky than exposing genuinely affordable public housing to the unpredictable market.

“This risk-taking and over-promising around what could be achieved through privatisation, and the turning of a blind eye to opposition, is exactly what made Haringey’s HDV proposal so unpopular.

“As Lambeth council begins to face the financial reality of their plucked-from-the air political target, we are already seeing the numbers of genuinely affordable homes dwindling.

“On Cressingham, the regeneration proposes little more than a dozen extra such homes, which is likely to ebb away as the project develops, and it promises to evict many more than it helps.”

In planning applications for three other Lambeth estates earmarked for the bulldozer – South Lambeth, Westbury and Knights Walk – just 34 extra such homes are proposed in total, compared to the previously stated 275, on which the cabinet decisions to demolish were based.

Mr Plant said of Peck’s statement: “This refusal to ballot us is fairly predictable, given Cllr Peck and her Labour cabinet’s consistent track-record of side-lining residents’ wishes.

“Our own survey showed that 86 percent of residents wanted refurbishment not demolition, with a 72 percent response-rate, so it is understandable that the leader of the council doesn’t want this formalised in an official vote.

“However, the mayor’s guide gives her an opportunity to right her wrongs and finally begin to put the community at the heart of this process.”

Mr Plant continued: “It would be morally reprehensible to continue whilst the consultation on ballots is ongoing.

“Only mandatory ballots will ensure regenerations that deliver benefits to the community.”

Notes

  • Residents have been requesting independently-run ballots since demolition of the estate’s 306 homes was first mooted five years ago.
  • Since then, there have been some changes to the estate’s demographic, with Lambeth replacing outgoing secure tenants with those on temporary accommodation licenses. Residents are calling for those tenants to be included in any ballot.
  • The design and management contract for Cressingham Gardens was only signed in November 2017, and is only at a preliminary ‘resident engagement’ stage.
  • Cressingham People’s Plan, which proposes optional resident management of estate repairs and maintenance, as well as up to 37 extra homes for council rent, has been fully costed at £7m, compared to Lambeth’s £110m+ scheme. The People’s Plan also proposes full green and sustainable refurbishment of homes.
  • Cabinet members made their decision with the expectation that Lambeth’s scheme could deliver around 27 extra council homes, however recent documents reveal that this has dwindled to 16, with mounting financial pressures likely to force that figure down further.
  • In November 2015, an earlier demolition decision was quashed at the high court. Cressingham residents won a judicial review which found that Lambeth council’s earlier decision to demolish the estate had been unlawful, after the council removed refurbishment options from the consultation before it had concluded and on a spurious basis. Officers ran the consultation again, but cabinet made the same decision to demolish. While residents lost a further judicial review challenging the second decision in December 2016, they still contend that the scheme is financially unviable. One of the key grounds of the second challenge was that the council opted for a financially unviable option, namely demolition, despite carrying out the consultation on the basis that the chosen option must be viable. During court proceedings, Lambeth did not deny that the Homes for Lambeth scheme would be kept out of the red by a £7m grant / loan from the council. Lambeth admitted that it had not formally accounted for paying back the loan in its viability calculations, but simply asserted in court that there would be plenty of money available to service the loan.
  • Lambeth Council’s proposal removes secure tenancies and replaces them with assured tenancies; homeowners (both leasehold and freeholders) will be forced into shared ownership (effectively an assured tenancy) unless they can afford an extra £200k extra to buy one of the new flats; will bulldoze the entire estate, displacing the existing community, of which many residents have lived in for decades; and make getting on the buses even more of a challenge for local commuters. There have been numerous accounts from residents on other regenerated estates suggesting that hasty construction and corner-cutting could produce poor-quality buildings:

https://www.southwarknews.co.uk/news/peckham-residents-fear-eviction-blocks-demolished-5-years-built/

https://www.theguardian.com/society/2017/jul/21/the-real-cost-of-regeneration-social-housing-private-developers-pfi

https://www.architectsjournal.co.uk/news/orchard-village-what-went-wrong-with-prps-flagship-housing-scheme/10017416.article

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.

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