Demolition-threat residents ready for judicial review 2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The options were:

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

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

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

Donate to the Cressingham residents’ fighting fund here.

DSC_0369
Eva Bokrosova successfully challenged the decision by Lambeth in 2015

——————————————————————

FOR FURTHER DETAILS PLEASE CONTACT: cressinghamlife@gmail.com

Advertisements

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.

——————————————————————

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.

IMG_0154_lowRes.jpg

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

——

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

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

_______________________

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.”

DSC_0369.JPG
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.