HIGH COURT JUDGMENT COULD WRECK LAMBETH’S ESTATES DEMOLITION PLANS – AND CROYDON’S ‘BRICK BY BRICK’ SCHEME FOR AUCKLAND RISE
A High Court judgment could wreck Lambeth council’s plans to demolish six council estates – and stop Croydon’s plans to build blocks of flats in between existing homes on the Auckland Rise estate off Sylvan Hill.
In the judgment Mr Justice Dove refused Southwark council permission to apply for a judicial review over their plans for the Aylesbury estate in Walworth against a decision by the Secretary of State for Communities and Local Government Mr Sadiq Javid.
Mr Javid had upheld a planning inspector’s decision to refuse planning permission.
The judgment could have far-reaching implications for both Lambeth council’s hugely controversial ‘Homes for Lambeth’ plans to demolish six council estates including Central Hill in Crystal Palace – and for Croydon council’s plans for the Auckland Rise estate off Sylvan Hill where they want to build blocks of flats between the existing blocks as part of their ‘Brick by Brick’ scheme.
HOMES FOR LAMBETH
In what could affect Lambeth’s plans for Central Hill, Cressingham Gardens, Fenwick, Knights Walk, South Lambeth and Westbury estates, the judgment by Mr Justice Dove says: “The main point that the inspector was raising was the financial impact on leaseholders, arising from the difference between Southwark’s valuation of their property and the cost of replacement property in the area which would either require them to use savings and to contemplate shared ownership or shared equity arrangements or alternatively force them to leave the area with the consequent social dislocation.
“The inspector and the Secretary of State were entitled, if not obliged, to take account of the reality of the situation in relation to the economic impact on leaseholders . “There was no error of law in the Secretary of State’s conclusions.”
BRICK BY BRICK
In what could affect Croydon’s plans for Auckland Rise, the judgment says that the Southwark council committee report noted that compliance with BRE (Building Research Establishment) guidance was not achieved in relation to a number of rooms and open spaces within the proposed Aylesbury development.
“The fact that the BRE guidance states that it is to be interpreted flexibly and natural light is one factor in design is of no assistance to Southwark” says Mr Justice Dove.
“The BRE guidance then requires a planning and design judgment as to whether the failure to achieve the BRE requirements is acceptable.
“The inspector exercised that judgment in paragraphs 368 to 370 of her report, noting the BRE guidance should not be applied inflexibly.”
These comments include: “Although many of these rooms will be bedrooms, the BRE requirements are applicable to all habitable rooms. “Inadequate daylight in any of these rooms would limit the future occupants’ flexibility to occupy the space as they wished”, and:
“BRE guidance recommends that in order for an outdoor amenity area to be adequately sunlit at least half of the area should receive a minimum of two hours sunlight on 21 March. “The courtyards within blocks 1 and 6 fall below this standard with only 39.6per cent and 26.7pc respectively receiving at least two hours of sunlight.”
(Note: A full copy of the judgment can be found at www.hbf.co.uk – Home Builders Federation weekly news summary December 23rd 2016 – Southwark bid for Aylesbury judicial review rejected)
Relevant paragraphs to the above story follow – Ed.
7. On 9 June 2016, the Secretary of State wrote to all the parties to invite comments on a Southwark Council report dated 8 December 2015 which made reference to a change in policy concerning the requirement in respect of leaseholder’s savings for resident homeowners affected by regeneration schemes and eligibility for council-assisted rehousing options.
8. The Secretary of State has had regard to all the views expressed in response to this report and all the correspondence received has also been taken into account. He considers, in the light of the facts of this case, that the matters raised do not alter his conclusions and decision.
19. The Secretary of State has carefully considered whether the purposes for which the Order was made sufficiently justify interfering with the human rights of those with an interest in the land affected. In particular, he has considered the provisions of Article 1 of the First Protocol to, and Article 8 of, the European Convention on Human Rights. The Secretary of State is not satisfied, for the reasons given by the Inspector (IR420-422), that such interference is justified.
20. In relation to Article 8 of the European Convention on Human Rights (ECHR), the Secretary of State agrees with the Inspector’s analysis of the impact on leaseholders set out at IR401 and 402, namely that in practice the options for most leaseholders are either to leave the area, or to invest the majority of their savings in a new property. Article 8(1) is therefore clearly engaged. In relation to Article 8(2) (which permits interference which is proportionate when balanced against the protection of the rights and freedoms of others), the Secretary of State finds that the interference with residents’ (in particular leaseholders’) Article 8 rights is not demonstrably necessary or proportionate, taking into account the likelihood that if the scheme is approved, it will probably force many of those concerned to move from this area.
368. Due to the height and density of the scheme only 81 per cent of the rooms across the FDS will achieve the minimum daylight requirements of the BRE, which form part of the Council’s adopted residential design standards.222 Within Block 1, 88 rooms fail to meet the minimum requirement, within Blocks 5 and 6, 170 rooms and 130 rooms respectively fail to meet the requirement. Although many of these rooms will be bedrooms, the BRE requirements are applicable to all habitable rooms. Inadequate daylight in any of these rooms would limit the future occupants’ flexibility to occupy the space as they wished.
369. BRE guidance recommends that in order for an outdoor amenity area to be adequately sunlit at least half of the area should receive a minimum of 2 hours sunlight on 21 March. The courtyards within blocks 1 and 6 fall below this standard with only 39.6% and 26.7% respectively receiving at least 2 hours of sunlight.223 This is to a large extent a function of the tall buildings on the Albany Road frontage, which overshadow these amenity areas. Within blocks 2 and 3, which contain predominantly terraced housing, only 3 of the 49 private amenity spaces receive sufficient sunlight to meet the BRE standard. Whilst adopted standards should not be applied inflexibly, the number of rooms and amenity areas that fail to comply with the Council’s own adopted standard is considerable, particularly given the number of residents served by these amenity areas and the fact that the scheme is part of a wider redevelopment and as such is not constrained by existing buildings.
370. I appreciate that the courtyards could be landscaped in a manner to optimise their use, however, due to the height of the buildings on the Albany Road frontage they would be severely overshadowed relative to the existing amenity areas. It is intended that these courtyards would be multi-purpose areas providing for childrens’ play, recreation, vegetable gardens and in the case of Blocks 4 and 5 ventilation for underground parking. Nonetheless, given that it is intended that these dwellings will replace existing housing which benefits from good standards of daylight internally and well lit sunny amenity areas, the scheme for the FDS would not improve the environmental well-being of the Order Land.
371. In terms of individual leaseholders it is apparent that the scheme will have significant economic and social impacts. Most leaseholders have strong family and community ties to the locality. For many this was a factor in their decision to purchase their property. It is not for me to comment on the amount of compensation payable. Notwithstanding this, most leaseholders wishing to remain living close to the estate will need to contemplate either shared ownership or shared equity. Both of these options require a financial assessment, which leaseholders find intrusive. [226,275] In addition, they will be required to put all but £16,000 of their financial assets towards any property purchased under these schemes.
372. Many of the leaseholders are of an age where they would be unable to obtain a mortgage to make up any shortfall and their future earning potential is limited. The requirement to use their savings and other investments severely limits their ability to choose how they spend their retirement and the use to which they put their savings and investments.
373. I am aware that the leaseholders are not obliged to accept either of these options and can choose to purchase a property on the open market. For many of the leaseholders moving away from the area will have significant adverse consequences in terms of family responsibilities, including the care of older relatives and children’s education. However, due to the difference between the valuation offered by the council and the cost of alternative properties in the locality, any leaseholders wishing to remain living in the area are likely to be reliant on these options.
Failure To Acquire Homes By Agreement
395. The Acquiring Authority submits that CPO powers have been used as a last resort. Although the majority of homes have already been acquired by agreement, the Acquiring Authority’s attempts to acquire all of the homes by agreement have not succeeded. The evidence submitted to the inquiry indicates that the main reason for this is due to the compensation and rehousing options available to leaseholders.
396. Leaseholders submitted extensive evidence in relation to their discussions with the Council in respect of the value of their homes, including the perceived failure on the part of the Council to base the market value on two independent
They also suggest that the Council did not allocate sufficient funds to purchase their properties at market value. The Council does not dispute that the values offered were based on on-estate values. It justifies this approach on the basis of two Upper Tribunal (Lands Chamber) decisions in the cases of John and Joshua.
397. Paragraph 2 of the Guidance states that the confirming authority will expect the acquiring authority to demonstrate that they have taken reasonable steps to acquire all of the land and rights included in the Order by agreement. Paragraph 3 of the Guidance states that in order to reach early settlements they are expected to make reasonable initial offers, and be prepared to engage constructively with claimants about relocation issues and mitigation and accommodation works where relevant. It provides a greater degree of flexibility by comparison with the previous regime.
398. For the reasons explained above, the Acquiring Authority submits that its offers should not be assessed against this new guidance since it is not intended that the guidance should apply retrospectively.[34,37] In the light of the considerable period of time between the submission of the CPO to the Secreatry of State and the publication of the Guidance, I agree that that in this regard the Guidance should not apply retrospectively, Moreover, it is not for me or the Secretary of State to form a view on the amount of compensation payable if the CPO is confirmed.
399. Compensation is not a matter before the inquiry. Nonetheless it is evident that the values offered by the Council are unlikely to enable the leaseholders to purchase a property on the open market in the locality. Accordingly, most leaseholders will either need to move away from the area, or seek rehousing assistance from the Council in the form of shared ownership, shared equity, or as a Council tenant. All of these rehousing options will necessitate leaseholders undergoing a financial assessment as part of the process.
400. Shared equity would enable leaseholders to remain in the locality and own part of their new dwelling. They would not be required to pay rent. Major works service charges would be apportioned to their share of the property. Nonetheless, eligible leaseholders are required to invest any capital in excess of £16,000 in any shared equity or shared ownership property. At the inquiry the Council explained that this aspect of the rehousing/compensation package is currently being reviewed. Nevertheless, at the present time it represents the reality for most leaseholders.
401. Evidence presented to the inquiry demonstrates that the assessment and the requirement to invest other capital/savings in the property place a considerable emotional and financial burden on leaseholders. A number of leaseholders no longer have outstanding mortgages and rely on their savings as a source of income and security for the future. It not only impacts on their future security, but also upon their future plans, including plans to return to education or travel, as well as maintain independence in old age. Due to their age, many of the remaining leaseholders would struggle to re-establish the savings they have accrued.
402. I acknowledge that suitable alternative properties are available. However, in practice the options for most leaseholders are either to leave the area, or to invest the majority of their savings in a new property. Having regard to the age and financial circumstances of many of the leaseholders both options would have significant social and economic implications for their well-being. I do not consider that the Council has taken reasonable steps to acquire leaseholder properties by agreement.
420. Confirmation of the Order would interfere with the rights of the Objectors under ECHR in respect of Article 8 and Article 1 of the First Protocol. Article 8 sets out the right to respect for private and family life, home and correspondence. Article 1 states that every natural or legal person is entitled to the peaceful enjoyment of his possessions. These are proportionate rights and any interference must be balanced against the public interest.
421. The Objectors would be compensated for their properties. In addition, the range of housing opportunities put forward by the Acquiring Authority would enable them to stay within the area. However, in order to exercise this option they would need to invest considerable personal resources in addition to any compensation they would receive for their properties. In this regard the CPO would not only deprive them of their dwelling but also their financial security. If they chose not to pursue this option, they would inevitably need to leave the area and this would have implications for their family life, including the lives of those dependant on them.
422. These considerations, together with the failure of the scheme to fully achieve the social, economic and environmental well-being sought, I consider that the interference with human rights would not be proportionate having regard to the level of interference and the public benefits that the scheme would bring.