R Andrew Plant v Lambeth London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Holgate
Judgment Date21 December 2016
Neutral Citation[2016] EWHC 3324 (Admin)
Date21 December 2016
Docket NumberCase No: CO/3232/2016

[2016] EWHC 3324 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Holgate

Case No: CO/3232/2016

Between:
The Queen on the application of Andrew Plant
Claimant
and
Lambeth London Borough Council
Defendant

David Wolfe QC and Leon Glenister (instructed by Leigh Day, Solicitors) for the Claimant

James Goudie QC and Jon Holbrook (instructed by Lambeth LBC Legal) for the Defendant

Hearing dates: 15 – 17 November 2016

Approved Judgment

Mr Justice Holgate

Introduction

1

Since 1996 Mr. Andrew Plant, the Claimant, has lived as a secure tenant of the Defendant, Lambeth London Borough Council ("LLBC") at 8, Hambridge Way, Cressingham Gardens, London SW2 2NJ. His home is located on the Cressingham Gardens Estate ("CGE"). LLBC is the local housing authority for its area and responsible for the CGE under the Housing Act 1985 ("the 1985 Act"). He challenges by judicial review the resolution of LLBC's Cabinet on 21 March 2016 (inter alia) to authorise the redevelopment of the entire estate. This involves the displacement of all existing tenants and owners and the demolition of existing homes prior to redevelopment. In so far as owners are unwilling to dispose of their interests LLBC will need to use compulsory purchase powers. So far as secure tenants are concerned LLBC envisages obtaining any necessary orders for possession under section 84 and ground 10 (landlord's intention to demolish) in Part I of Schedule 2 of the 1985 Act.

2

Permission to apply for judicial review was granted by May J on 19 August 2016. On 26 September 2016 Cranston J ordered that the substantive hearing should take place before the end of November 2016.

3

CGE comprises 360 dwellings. They are occupied by a mixture of secure tenants, leaseholders through the exercise of a statutory "right to buy", persons who have bought leases from persons who had exercised that right and some freeholders. LLBC states that around 62% of the right to buy properties have been sold on to incoming purchasers, no doubt a reflection of the estate's good location within the Borough and the capital.

4

The estate was built in the 1960s on the edge of Brockwell Park to a relatively low density and using more traditional materials, notably brick. From 1963 Edward Hollamby OBE, the Borough Architect, led a team of architects which was responsible for a substantial programme of innovative, attractive local authority housing estates in Lambeth of which CGE was one. Although the estate does not qualify for listing under the Planning (Listed Buildings and Conservation Areas) Act 1990, English Heritage (now Historic England) has noted that, for example, the quality of the open spaces contributes to CGE's character. The estate is well situated for commuting and LLBC accept that it is seen as a desirable place in which to live.

5

However, since 2012 LLBC has taken the view that CGE is a costly estate to manage and maintain and that there are serious problems in the condition of many of the properties. They also consider that refurbishing the properties would not overcome intrinsic problems in the estate's design which have become apparent since the 1960s. For example, there are numerous staircases throughout the estate which make accessibility, particularly for the disabled, a serious problem.

Events from October 2012 to November 2015

6

On 22 October 2012 LLBC's Cabinet approved a report on the Lambeth Estate Regeneration Programme ("LERP"). The report identified estates suitable for regeneration on the basis of three criteria: (1) whether the costs of bringing an estate up to the Lambeth Housing Standard ("LHS") were prohibitive, (2) whether bringing an estate up to the LHS would fail to address underlying issues such as the basic condition of the homes, and (3) whether wider regeneration benefits would justify the inclusion of an estate in the programme. The Council included CGE in phase 1 of the regeneration programme. This was partly because the cost of refurbishment per dwelling was high and yet structural problems would still remain. But in addition the low density of the existing built development on the estate provided scope for increasing the number of homes provided.

7

In December 2012 LLBC began what became a protracted process of discussion and consultation with residents on the regeneration of CGE and alternatives to redevelopment.

8

On 6 November 2014 LLBC launched a consultation with residents on five options, but on the basis that ultimately the authority could only adopt an option which would be "affordable". In summary, the options were as follows:-

Option 1 – refurbish all of the 306 homes on the estate;

Option 2 – Demolish 19 homes and redevelop with 38 new homes. Refurbish all other houses on the estate.

Option 3 – Demolish 31 homes and redevelop with 51 new homes. Refurbish all other homes on the estate.

Option 4 – Demolish 120 homes and redevelop with 193 new homes. Refurbish all other homes on the estate.

Option 5 – Demolish all 306 homes on the estate and redevelop with 464 new homes (the full "regeneration" option).

It was pointed out by LLBC that the average cost per home of LHS refurbishment works was more than twice as much for the CGE compared to other estates in Lambeth.

9

LLBC was obliged to consult their tenants on these options pursuant to section 105 of the 1985 Act. As part of the process LLBC stated that they would set up 5 working groups which would involve residents, one of which would be concerned with financial modelling. At a meeting on 27 October 2014 it was explained that the modelling would analyse estimated revenue and expenditure for each option by using discounted cash flow ("DCF") techniques to produce a net present value ("NPV") for each option so that comparisons could be made between them.

10

In a letter to residents dated 26 February 2015 LLBC's Cabinet member for housing explained that CGE had been identified for regeneration in 2012 because of the cost of bringing its housing up to the LHS and because of the pressing need to provide more homes for rent across the borough. In December 2014 LLBC had decided to provide a large proportion of these new homes on six estates, one of which was CGE. The letter also explained that because LLBC was unable to afford options 1 to 3 and because those options would fail to deliver the number of new homes expected from the CGE, a report would be presented to the Council's Cabinet in March 2015, recommending that they be withdrawn from consultation with the residents.

11

On 9 March 2015 the Cabinet resolved to accept that recommendation and continue the consultation with residents solely on options involving "significant regeneration" of CGE. A resident of the estate, Eva Bokrosova, brought a claim for judicial review against LLBC in respect of its decision to change the basis of the consultation exercise before it had been completed. The matter came before Elizabeth Laing J. In her judgment delivered on 24 November 2015 she allowed the application and quashed the decision of 9 March 2015 ( R (Bokrosova) v Lambeth London Borough Council [2015] EWHC 3386 (Admin); [2016] PTSR 355).

12

In summary, the Judge held:-

(i) In late 2014 LLBC had embarked upon a "detailed and sophisticated programme of consultation" with residents. The effect of the decision on 9 March 2015 had been to renege on those arrangements and to prevent the Council from considering the representations from residents on three of the options (paragraph 79).

(ii) Assuming, without deciding, that a sufficiently significant change in circumstances could have entitled LLBC to alter the consultation process in that way, on the evidence presented to the Court no such change had occurred. Therefore, by removing options 1, 2 and 3 from the consultation exercise the authority had acted unlawfully (paragraphs 83 – 87);

(iii) With regard to section 31(2A) of the Senior Courts Act 1981, if LLBC had not altered the arrangements for consultation, the financial position on all of the options would have been before the Council "much more fully" and in those circumstances it was not "highly likely" that LLBC's decision would have been the same. Consequently, the Court was not required by section 31(2A) to refuse relief (paragraph 90);

(iv) If, contrary to (iii), the test in section 31(2A) for refusing relief had been met, on balance general public interest factors outweighed the need to hold LLBC to its consultation promises to the tenants of the CGE and so under section 31(2B) of the 1981 Act relief would have been refused. Those public interest factors included the Council's very difficult financial position, the balance to be struck between the interests of the residents of CGE and the Council's other tenants and those on the housing waiting list, the urgent need for works to be carried out to the CGE, and the need for residents to have certainty about the future of their estate (paragraph 91).

(v) Relief should not be refused on the grounds of delay (paragraphs 92–7).

13

Two further points concerning the judgment should be noted. First, at paragraph 80 Laing J accepted that the decision had been politically sensitive and difficult for LLBC because it involved balancing the interests of different groups, on the one hand tenants, homeowners and leaseholders on the CGE and on the other hand the Council's tenants living elsewhere in the Borough whose rents (at that stage) could be adversely affected by a decision to spend more on CGE. Second, it is common ground between the parties in the present proceedings that the Judge's summary of the factual background up to March 2015 contained in paragraphs 4 to 64 of her judgment is accurate. I gratefully adopt that summary.

Events leading to the present claim for judicial review

LLBC's...

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