Bokrosova v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 24 November 2015 |
| Neutral Citation | [2015] EWHC 3386 (Admin) |
| Docket Number | Case No: CO/2685/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 November 2015 |
[2015] EWHC 3386 (Admin)
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: CO/2685/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Wolfe Q.C. and Leon Glenister (instructed by Leigh Day) for the Claimant
Jon Holbrook (instructed by Lambeth Legal) for the Defendant
Hearing dates: 3 – 4 November 2015
On 9 March 2015 the Cabinet of the Defendant ('the Council') resolved among other things
a. that the cost estimate to bring the Cressingham Gardens Estate ('CGE') up to the Lambeth Housing Standard ('LHS') was £9.4m;
b. that there was then no provision for the cost of a refurbishment-only programme in the Council's LHS programme, and the Council had a duty to say what was feasible within budgetary constraints;
c. to recommend that officers consult further on options for significant regeneration of CGE (as set out in the report) and that a viable regeneration proposal be brought back to the Council's Cabinet ('the Cabinet') in May 2015 with full supporting evidence;
d. that there was a commitment to work with residents to develop the regeneration proposals.
This claim was lodged on 9 June 2015. Permission to apply for judicial review was given by Holman J on 10 July 2014 on two grounds (by reference to the grounds pleaded in the claim form). It was arguable that the decision to drop options 1–3 was unlawful because
a. in breach of section 105 of the Housing Act 1985 and of the common law requirements for a lawful consultation the Cabinet did not conscientiously take into account the views of residents expressed in response to the information pack and other information provided at workshops and meetings; and
b. in breach of the general requirements of lawful consultation (as above) the Council decided not to proceed with options 1–3 because they were 'not affordable'.
The Claimant was represented by Mr Wolfe QC and Mr Glenister. The Defendant was represented by Mr Holbrook. I am grateful to all counsel for their helpful skeleton arguments and to Mr Wolfe and Mr Holbrook for their oral submissions.
The background
The Lambeth Estate Regeneration Programme
On 22 October 2012, a report on the Lambeth Estate Regeneration Programme ('LERP') was presented to the Cabinet and approved. The aim of the programme was to improve existing residents' housing and to provide new homes at council rent levels. Three principles had been used to identify estates which were suitable for regeneration. They were to focus on the estates where (1) the costs of providing the LHS were prohibitive; (2) residents and the Council considered that bringing housing up to the LHS would fail to address underlying issues such as the basic condition of the homes or wider problems experienced by residents; and (3) the wider benefits of regeneration would justify it.
The report noted that in March 2012 the Council had approved the LHS. It required nearly £500m to be spent over five years. There was a £56m funding shortfall and some problems would not be solved by implementing the LHS. This had led to preparatory work on the LERP. Paragraph 2.8 of the report identified CEG as an estate which met two of the criteria. The annual maintenance costs were high but structural problems meant that there was little visible improvement from repairs. 'Together difficult decisions need to be made as to whether to continue investing in properties… or whether to look at alternative options'. The Council was said to be exploring the options with residents; after a six-month period of 'co-producing options', a 'preferred option' would be presented to the Cabinet.
December 2012
In December 2012, a document headed 'Cressingham Gardens: the case for action' was sent to residents. It said that CGE was popular but that 43% of tenanted properties were 'non decent'. The Council had spent £1.84m on 'responsive repairs' in the past six years, but the overall condition of the properties was not improving. Simply refurbishing all the homes was not the answer. Tenants' lives could be improved by offering them new homes. The Council could look at whether there were ways to manage CGE better. The Council would work with tenants and the tenants' and residents' association ('TRA') to 'look at all possible options for improving [CGE]; and so long as they are high quality, affordable, sustainable and meet the needs of residents… then they will be considered.'
The Council had given information to the TRA about refurbishment costs. Basic refurbishment would cost £3.4m. There were three issues with those costs. The actual costs could be greater, basic refurbishment would lead to limited improvements to the inside of homes, and it did not include the cost of remedying structural problems. The Council explained what further works would be needed. The Council considered that the actual cost of bringing CGE up to the LHS would be significantly more than £3.4m. The Council then set out a timetable for engaging with the residents of part of CGE on those issues.
Social Life's activities in 2013
Between July and September 2013, Social Life, a firm engaged by the Council, led a 'consultation and co-production process'. They interviewed residents. Their findings were published in October 2013.
The project delivery team
According to the report for the Cabinet meeting on 9 March 2015, the next 'significant period of engagement' began in November 2014. However, before that, the Council established, in spring 2014, a 'project delivery team' for CGE. Its terms of reference included considering 'regeneration options' for CGE which met the aims of the Council and 'Community wider objectives', steering and managing regeneration options and co-producing the regeneration options with the residents. The project team members were to 'scrutinise, question and investigate information' and raise issues which had been highlighted by residents. Strategic Urban Futures ('SUF') were appointed by the Council to help the residents.
Email exchanges in late September and October 2014 between Ms Gniewosz, a leaseholder, and council officers show that she was asking for detailed financial information about the options, including full 30-year cash-flow models for each of the options to enable options to be played with, and 30-year forecasts of debt headroom and the Housing Revenue Account (' HRA') financial model. On 7 October 2014, the project team members, including Ms Gniewosz, were emailed a number of attachments for a meeting the following Friday. They included, I am told by Mr Holbrook, 30-year 'rough' NPV (that is, 'net present value') models for the options which were then being considered, including the refurbishment option. This was the only time any financial information was provided to the project team, Mr Wolfe submitted. Ms Gniewosz repeated her earlier request when these documents were emailed to her.
On 15 October 2014 there was a meeting of the project team. Ms Gniewosz was present. Mr Vokes, for the Council, set out a 'programme of engagement which would enable residents to discuss the different options for the future of CGE'. Provisional dates for workshops were set out. Paragraph 3.1 of the minutes records that a sub-group would be set up to look at financial modelling. The first step would be to agree assumptions to be used in the model. Those included buy-back values for leaseholders, the value of new properties and information on the LHS costs. Paragraph 3.2 says, 'It was agreed that an NPV calculation would be used so that the options could be compared however the Council stressed that if [CGE] went back into the LHS programme then the Council would not use an NPV financing model as the estate would be treated in the same way as all other estates being refurbished so the works would be funded through the LHS financial model'.
On 16 October 2015 Mr Vokes of the Council emailed Ms Gniewosz among others to say that it had been agreed at the meeting the previous night to set up a sub-group of the project team which would develop an NPV model for each of the options. The purpose was to provide 'a comparable baseline'. The NPV models needed to be completed for the first workshop on 29 October 2014. In fact, though there were later emails on this topic, no further NPV models were ever produced.
October 2014 letter to residents
On 21 October 2014 Mr Vokes wrote to the residents. He said the Council understood residents' concerns and frustration. The purpose of 'this engagement' was to come up with a solution to those concerns about the poor condition of their homes and to look at opportunities for building new extra homes. The Council did not intend to sell CGE to a private developer. No decision on the future of CGE had been made. The Council had set out a new timetable of workshops so that as many people as possible could get involved. The workshops would start in early November and run until the end of January 2015. Social Life and others would be co-ordinating additional sessions to discuss some issues more fully. These would discuss green retrofitting, and alternative resident management options. 'At the end of this process you will be asked for your views on each of the affordable and feasible options for [CGE]' as part of the test of opinion. Mr Holbrook submitted that these words showed that the Council was preparing the ground to discount some options if they proved not to be affordable or feasible.
The letter set out a timetable for 5 workshops. The first would set up working groups. It was suggested that one of those would deal with financial modelling, one with green retrofitting and one with resident management options. Workshop 2 was to for tenants...
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