Public Interest Law Centre

public law | human rights | legal action

27Mar 2024

Local Council financial meltdown – is there another way?

27th March 2024|General|

Photo: Socialist Party/Militant

There is a spectre haunting the Town Halls of Britain, the spectre of bankruptcy. Local councils are going bust, or are teetering on the edge of a financial precipice. Paul Heron, the Legal Director at the Public Interest Law Centre, examines the problems that face councils, and asks is there anything that can be done?

On 5 March 2024 Councillors at Birmingham City Council sanctioned the most extensive budget cuts in the history of local government. The measures entail the elimination of approximately 600 council jobs, the ending of arts grants, closure of libraries, and the reduction of bin collections to once every two weeks. Furthermore, the approved cuts include reductions in funding for adult social care, children’s services, flood defences, and highway maintenance. Additionally, street lighting throughout the city will be dimmed. The council, has also endorsed a 10% increase in council tax for the upcoming financial year. This decision follows the council’s declaration of effective bankruptcy in September 2023, with the government granting special permission to exceed the national cap on tax rates.

From Birmingham to Northamptonshire, Croydon, Slough and Thurrock, the list of bankrupt councils goes on. Indeed as has already been noted, “One in 10 county councils in England is facing effective bankruptcy – putting vital services at risk, local government leaders have warned.”

From libraries, to youth clubs, from care homes to other essential services, austerity measures have served as the final blow to these social lifelines. Let us make it clear these are Central Government cuts to local government finances, however local Councillors sit on their hands and do nothing.

In 2018 the Public Interest Law Centre (PILC) through judicial action stopped the forced sale of Southall Town Hall by Ealing Council. .The old Southall Town Hall was the home of many charities and community groups. Had the sale gone through, charities housed there would have been homeless. Without a base, many of these vital community groups would have ceased to exist. According to Ealing Council Councillors the sale was necessary to ‘plug the gap’ in the cuts expected in the Council’s finances. Campaigners were told ‘there was no alternative’. Since the successful judicial review action the council have not re-visited the decision, and the sale was effectively stopped. There is now a healthy and vibrant Southall Community Alliance who supported the case all the way through, and have no intention of these proposals returning.  In Folkestone, Kent, we helped the community secure the future of their local library and hold the local authority to account over their austerity-backed closure and lack of repairs.  This case demonstrates how councils cut without consultation.

Cuts, cuts, cuts…

Local councils have been the frontline instruments to pass on austerity cuts for the past decade and more. No other area of government has been subject to the same financial squeeze. In July 2023 the London Government Association estimated that English councils faced funding gaps of £2bn in 2023-24 and £900m in 2024-25. It has since revised those figures in the light of Bank of England inflation forecasts to £2.4bn and £1.6bn respectively.

You don’t need to be a financial genius to understand how we arrived at this point. The funding allocated to councils by the Central Government experienced a substantial real-terms reduction of 40% from 2010 to 2020. Further and even sharper cuts are on the way.

There is no doubt that local councils are caught in a whirlwind of cuts and financial constraints. Sadly, elected councillors are doing nothing to stop this happening. They are merely voting to pass the cuts. This is not only an abdication of duty, but an act of political cowardice.

What should local Councillors do?

Local councils retain enormous powers and responsibility.  Councils in England control budgets totalling £120 billion – providing services from housing to schools, youth provision, adult social care, libraries, museums, crime reduction, local welfare assistance, sports centres, parks, transport, highways maintenance, recycling and refuse collection, and have legal powers over many non-council provided services.

Local councils are in a powerful position to fight back. It is just not true, as the majority of Councillors try to suggest, that they are powerless to act.

Local councils are facing major cuts from Central Government. However, there is room to manoeuvre. The Localism Act 2011 provides local councils with an inherent power of competence [to do] anything apart from that which is specifically prohibited. As a matter of law this allows Councillors to act against making cuts.

As a start, local Councillors who are prepared to resist austerity can use their own reserves and ‘prudential borrowing’ powers to avoid passing on government cuts. Such a step needs to be linked to empowering the community, building campaigns against cuts and crucially linking with the wider movement. A mass campaign of opposition to Central Government cuts has to be built. Such a strategy is completely within a council’s legal powers.

Council finance officers can challenge a budget they believe to be ‘knowingly unbalanced’. In other words, a no cuts budget, but it is not unlawful to set such a budget if it can be balanced in other ways.

Thus, the use of reserves to meet projected deficits and finance debt repayments is legally a ‘matter of judgement’ for Councillors themselves to make. As The Times reports, local authorities were ‘sitting on £21.8 billion of non-ringfenced reserves last year, £5 billion more than they had in 2017 and £11 billion more than they had at the start of the decade’.

I would accept that councils using reserves and selective borrowing to avoid making cuts would only be buying time. There is an inevitable showdown to be had with Central Government at some point. There is after all no ‘clever tactic’ or legal principle that can avoid the need to build a mass campaign against the cuts.

Any legal tactic therefore needs to be linked to a campaigning strategy. Thus, the best way for Councillors to contribute to the mobilisation of a mass campaign, necessary to defeat the cuts and campaign against Central Government, is to argue for budgets that meet the needs of their local communities, without massive council tax hikes. They should call for councils to join together to demand that the government makes up the funding shortfall. Such a deficit budget or no cuts budget clearly highlights what is needed, and exposes government cuts. This is not a new tactic.

Councillors – fighting cuts

In 1984 the council in Liverpool employed the tactic of a ‘needs budget / no cuts budget’  to great effect. Indeed, they forced the then Central Government to concede extra resources to the city worth up to £60 million (£98 million today).

However, there is, of course, no guarantee of victory – but if there is no fight, there will be no win.

It is important to pause here and acknowledge that the law has changed since the 1980s. The Local Government Act 2000 abolished the power to surcharge Councillors (that is to fine Councillors). So whereas Councillors in Liverpool and Lambeth councils faced surcharge in the 1980’s, this is no longer a weapon that can legally be used. There is therefore no reason why Councillors can’t act now.

The advent of ‘localism’ under the Localism Act sought to place councils in control. Thus powers were restored to local councils by Central Government and there is more flexibility for Councillors to act.

The state’s reserve powers to appoint commissioners to take over particular council functions remain, although only after a legal process – which in itself could also be challenged both in and outside the Court. Central Government moving against a local council and deploying commissioners to take over would be difficult – particularly if there was wide support in the community for an anti-cuts budget. That would be even more problematic if several councils take the ‘Liverpool road’ simultaneously and are backed by a mass campaign.

What if Councillors fail to act and continue to make cuts?

The attitude of the Councillors in Birmingham and all the councils who have faced financial meltdown is to pass on Central Government cuts. They don’t want to act to stop cuts. What legal remedies are there?

There is still the possibility of bringing selective legal challenges to stop cuts. The first option is to challenge any proposed cuts that impact on a service or duty that the Council has a statutory duty to deliver. The second are services that are provided as part of a public service which are not pinned to a statutory duty. Such duties such as youth services or libraries that are cut or closed, these can also be subject to a public law legal challenge and a Judicial Review.

If you require further information contact our Public Law team on 0203 559 6342 or at office@pilc.org.uk

1Mar 2024

Criminalised for Seeking Asylum: the conviction of Ibrahima Bah

1st March 2024|General|

Last week, Ibrahima Bah, a teenager from Senegal, was convicted of illegal entry into the UK and manslaughter by gross negligence. We are deeply concerned and saddened at this result, both in the impact on Ibrahima and the perpetuation of the criminalisation of seeking asylum that this case demonstrates.

Details of the Case

Ibrahima Bah was arrested in December 2022 after the dinghy he was driving across the Channel broke apart next to the fishing vessel Arcturus. Four men are known to have drowned, and up to five are still missing. One of those who drowned was Allaji Ibrahima Ba, 18 years old from Guinea who had travelled with Ibrahima from Libya and who Ibrahima described as his brother.

There were multiple factors that contributed to the shipwreck and resulting deaths, including the boat’s poor construction, passengers standing in the dinghy simultaneously, the delay of the French Coastguard in launching a search and rescue operation, and the delay of the fishing vessel Arcturus in informing the Dover Coastguard.

Ibrahima’s testimony explained that he had agreed to drive the boat in exchange for free passage for himself and his brother, but refused upon seeing the size of the boat compared to the number of passengers. He explained that the armed smugglers then beat him and forced him onboard to drive the boat. Many of the survivors testified that Ibrahima saved their lives by steering the dinghy towards the fishing vessel when it got into danger and described him as an ‘angel’, assisting passengers to board the vessel first and holding the rope to keep the collapsed dinghy alongside. Their testimony also corroborated that Ibrahima had been beaten and forced onboard the boat.

The prosecution argued that Ibrahima was not telling the truth about being forced to drive the boat, and suggested that even if he had been forced that he was responsible for the deaths as he did not turn the boat around.

This the second trial of this case following a previous trial resulting in a hung jury in July 2023. In this trial, the jury found Ibrahima guilty of manslaughter by gross negligence by a majority of 10-2 and guilty of illegal entry into the UK unanimously.

Ibrahima was sentenced on 23 February to 9 years and six months imprisonment.  

Criminalisation of seeking asylum

As the first shipwreck survivor to face manslaughter charges for the deaths of fellow passengers, Ibrahima’s conviction represents another troubling expansion of the criminalisation of seeking asylum.

Despite the many contributing factors to the shipwreck and his attempts to assist his fellow passengers, Ibrahima has become a convenient scapegoat in this tragedy. For example, the French and UK Coastguards have faced no consequences at the time of writing for their failure to assist people in distress.

On broader level, Ibrahima’s conviction hides the reality of the UK’s border regime which makes these journeys inevitable. For the vast majority of migrants, there are no safe routes to the UK to seek asylum. It is not possible to make a claim of asylum without being physically present in the UK, and arrival into the UK without valid entry clearance is illegal. It is simply not possible to come to the UK to seek asylum in a way that complies with current immigration rules.

The Nationality and Borders Act 2022 expanded the provisions of the Immigration Act 1971 to create new criminal offences. Under the previous rules, there was a key legal distinction between ‘arrival’ and ‘entry’ into the country whereby arrival takes place when a person arrives at a designated port with an approved area, whereas entry only takes place when someone passes immigration control or leaves an approved area.

A recent report published by the Centre for Criminology at the University of Oxford and Border Criminologies concludes: “Despite the Government’s rhetoric, both offences target people with no role in organised criminal gangs. The vast majority of those convicted of both ‘illegal arrival’ and ‘facilitation’ had ongoing asylum claims. Victims of torture and trafficking, as well as children with ongoing age disputes, have also been prosecuted.

“Those who were charged faced short hearings in the magistrate courts, usually within 48 hours of their arrival. Proceedings were often complicated or significantly delayed by poor interpretation and faulty video link technology. Bail was routinely denied without proper consideration of each individual’s circumstances.”

The 2022 Act removed the significance of this distinction by making even arriving or attempting to arrive in the country without valid entry clearance a criminal offence. R v Mohamed [2023] EWCA Crim 211 confirmed that prosecuting asylum seekers is lawful under the Act. Whilst having a strong case for asylum will count as a factor against the need for prosecution, making an application without merit may increase the likelihood of prosecution.

Unsurprisingly, prosecutions have not acted as a deterrent for Channel crossings. Between June 2022 and October 2023, 253 people were convicted under the act for illegal entry. These prosecutions do nothing but criminalise and continue the suffering of vulnerable people seeking asylum, whose rights should be protected by the Refugee Convention to which the UK is a signatory.

Anti-black discrimination in criminal justice

Ibrahima’s case also highlights the structural racism of our criminal justice system. We are very concerned by the anti-migrant sentiment expressed by the captain of the fishing vessel Arcturus in an interview with GB news and the racial stereotypes in his witness testimony in describing Ibrahima as ‘mouthy’ and ‘ungrateful’. Ibrahima was convicted by an all-white jury, and it is disappointing to see that the testimonies of the survivors of the shipwreck, that were communicated via interpreters, appear to have been dismissed. The duress the Ibrahima was subjected to in driving this boat, and his efforts to save his fellow passengers have gone unnoticed, whilst the lethal and irrational border regime remain unchallenged.

Captain Support, a group supporting Ibrahima and others facing criminalisation for migration, have said of the case: “The result of Ibrahima’s retrial is a miscarriage of justice. Seeking asylum is not a crime. His actions to steer the dinghy towards the Arcturus and assist fellow passengers following the shipwreck saved lives. They should be commended, not condemned.

“However, Ibrahima is not alone but one of hundreds facing prison time for having come to this country to claim asylum. The fact he was arrested and successfully prosecuted sets a worrying precedent for the future. People are forced into precarious and dangerous crossing by sea through the cruelty of the border. Then, they are blamed for it. The support of civil society groups socially, legally, and politically is invaluable in our shared campaign to right this wrong.”

We offer our heartfelt support to Ibrahima and all those targeted by these prosecutions, and hope to see his conviction overturned.

Image: Captain Support

2Feb 2024

Elephant Park H1 Planning Inquiry: Case Update

2nd February 2024|General|

Elephant Park H1 Planning Inquiry: Planning Inspector allows Office Block to proceed.  What did participation achieve, and are there any lessons to be learned?

On  30 November 2023, the Planning Inspector allowed Lendlease to proceed with plans to build an office block on the final site of the former Heygate Estate in Southwark, London.

PILC, along with Southwark Planning Voice and Charles Bishop of Landmark Chambers, represented a group of residents and campaigners called the Community Objectors of H1 (‘COH1’).  They won the right to be a Rule 6 Party to this Planning Inquiry in which Lendlease were appealing a decision by Southwark Council to refuse them planning permission to build the office block.

COH1, as well as supporting Southwark Council’s position on the character and light impacts of the proposed office block, put forward the position for housing.  COH1 argued that Lendlease have not followed Policy H8D of the London Plan 2021, as they favoured an office block over building affordable (and we say particularly social rented) housing.

A full review of the Planning Inquiry, and arguments made by Lendlease (Appellant), Southwark Council (Defendant) and COH1 (Rule 6 Party) can be found in a previous blogpost

Unfortunately, although the Inspector acknowledged COH1’s case as ‘perfectly legitimate’ (as opposed to Lendlease, who called it ‘inadmissible’), they decided that the question had been settled in 2013, when Southwark determined that off-site replacement housing (the so called Early Housing Sites) was sufficient for rehousing ex-Heygate households.  You can read more detail about the decision, and local analysis, in this blog by the 35% Campaign, who were a crucial part of COH1.

Although this outcome is ultimately disappointing, COH1’s formal presence in this Inquiry achieved a number of things:

  • COH1 forced the question of housing, and particularly social housing, at the Inquiry. It also gave a new insight into how Lendlease deal with estate regenerations.

Tough questions were asked of Lendlease which resulted in clarity on how they have dealt with the redevelopment of the Heygate estate including the numbers of homes built in place of the units on the Heygate estate and where these were built (see aforementioned blogs).  Further, the interesting revelation that Lendlease hired Acme architects to design an office block some four years previous to a local policy change, which allowed greater office space on this site.  At its best this is “remarkable foresight” (as the 35% Campaign puts it) and at worst, contributes to community distrust of the close relationships between local authorities and developers.

  • COH1 gave the community a voice in the Inquiry.

Through written statements, and a community witness in the stand, COH1 ensured that both Lendlease and Southwark Council were forced to engage and respond to community concerns.

  • Further to COH1’s efforts in arranging a visit to council properties opposite the proposed block, the Inspector resolved against Lendlease’s expert analysis of the value of light to Temporary Accommodation tenants:

“The living conditions of residents of studio flats, bedsits, or temporary accommodation are just as worthy of protection as those of residents of more permanent and/or substantial forms of accommodation.”

This may seem an obvious sentiment, however the Inspector was responding to arguments put forward by Lendlease which sought to diminish the value those living in Temporary Accommodation place on light.  These expert statements included the shocking: “During my site visit it was also clear to see how the windows had accumulated a meaningful amount of dirt. This leads me to conclude that the occupants do not place a high value on the available daylight as Plot H1 currently stand.”

Hopefully this arguably classist position will not be raised by Lendlease in the future.

If there is any major lesson that campaigners can learn from this inquiry it is this: Ultimately, the Inspector found that there were policy reasons supporting the use  of office space, this was in the local Southwark Plan. In the end, Lendlease were able to say that the plan requires  60,000 square metres of office space, and this was the only area left for it. Before they entered the plan, Lendlease had hired Acme architects to design the office block. Thus, the takeaway is that campaigners should organise at the outset of Local Authorities designing their local plans, and fight for these plans to benefit the community.

12Dec 2023

Lambeth Council agrees to extend public consultations after PILC letter

12th December 2023|General, Gentrification|

Photography: @savecentralhill / Twitter

On 21 November 2023, the Public Interest Law Centre (PILC) sent a pre-action letter to Lambeth Council on behalf of the Central Hill Estate Residents Association (CHERA).

CHERA – a group of residents from the Central Hill Estate in the Lambeth – challenged the council’s decision to run a public consultation on Lambeth’s Housing Strategy across just six weeks, from the period 9 October to 20 November.

On 8 December 2023, Lambeth Council confirmed they would extend all three consultations until 19 January 2024.

CHERA also challenged the council’s decision to run two other public consultations concurrently – on Lambeth’s Housing Allocation Policy Review and on Central Hill Environmental Improvements.

Owing to the similarities between these consultations, and the importance of public engagement on all issues, PILC and CHERA argued that there was a strong risk of public confusion and ‘consultation fatigue,’ especially given that two consultations were open for an identical time period, and an additional third for the majority of the time period.

On 17 October, Housing Action Southwark and Lambeth (HASL) – a volunteer-led community housing group made up of families and individuals who are homeless, living in overcrowded housing or facing other housing problems – wrote to the proposed Defendant with their concerns about the Housing Allocation consultation. HASL raised concerns about:

  1. The levels of outreach and engagement undertaken by the proposed Defendant to ensure that ‘hard to reach communities’ most affected by the policy were consulted;
  2. The format of the policy review and the accessibility issues;
  3. The nature of the Equality Impact Assessment; and
  4. The timeframe of the consultation of six weeks being too short.

Pre-action letter

In the pre-action letter sent to Lambeth Council on 21 November, PILC challenged the length of time allocated to the three concurrent public consultations, given the length of the documents to be reviewed, the lack of consideration for people whose first language is not English, and the lack of support provided to enable people with access requirements to respond to the public consultations.

The Law

Where a public body undertakes a consultation exercise, it must be conducted properly. When public consultations are conducted outside a statutory requirement, a duty to consult arises where there is a ‘pressing and focused’ impact on a particular group through a policy or project ending abruptly, or where a legitimate expectation exists that a consultation would take place. The overall test is whether the consultation process was so unfair as to be unlawful.

The requirements for a lawful consultation were established in R v London Borough of Brent ex parte Gunning and consist of four principles which enable a consultation to be fair and lawful:

  1. Consultation must take place when proposals are at a formative stage;
  2. Sufficient reasons must be put forward for any proposal to allow ‘intelligent consideration’ and an informed response;
  3. Adequate time is given for consideration and response; and
  4. ‘Conscientious consideration’ must be given to the consultation responses by the decision makers before making a decision.

CHERA says:

“Lambeth doesn’t seem to be engaging properly with, or truly listening, to residents, just completing tick box exercises.”

Alexandra Goldenberg says:

“Housing is the most pressing issue facing Londoners. Residents of Lambeth should be given a chance to have a say in the future of housing policy in the borough.”

28Sep 2023

Elephant Park Planning Inquiry: recap

28th September 2023|General|

As the Planning Inquiry related to the final plot of land of the former Heygate estate wraps up, we summarise the legal arguments, the notable moments and what’s next.

On 22nd September 2023, closing submissions by parties were heard at the Elephant Park ‘Plot H1’ planning inquiry.  This brought to a close a 2-week process in which global property developer Lendlease were appealing Southwark Council’s decision to reject their planning application to build an 18 storey office block  (with no housing) on the final plot of the Heygate estate.

Public Interest Law Centre, in a legal team with Southwark Law Centre, were instructed by Community Objectors of H1 (‘COH1’) a Rule 6(6) party to the Inquiry, bringing to the fore the argument for building housing, not an office block on this final plot of the Heygate Estate.  Charles Bishop of Landmark Chambers is the instructed counsel in this matter.

The arguments

This appeal concerned a standalone planning application known as ‘Plot H1’.  This application  is not a Reserved Matters Application (‘RMA’) under the permitted Heygate Estate Masterplan (given permission in 2013 alongside permission to demolish existing buildings).  Rather, it is a  ‘new’ application which has to ‘stand on it’s own two feet,’ despite being the ‘last piece of the jigsaw’ in the redevelopment of the Heygate estate.  Lendlease applied to build the proposed 18-storey office block under a new standalone application, as it is larger than the area permitted under the Masterplan.

In summary Lendlease, the Appellant, argued that:

  1. The design of the proposed 18-storey office block is exemplary and signals a positive change;
  2. The need and size of the office block was necessary to fulfil the employment space target[1] of 60,000sqm in the local Southwark plan; and
  3. There was no case for housing as any policy requirements for the reprovision of housing had been fulfilled by the reprovision of housing on the Masterplan site plus the offsite Early Housing Sites.

In defending their original rejection of this application, Southwark council argued that:

  1. The proposed office block would harm the character of the surrounding area;
  2. The impact to the daylight of neighbouring properties was ‘very serious’; and
  3. That the scheme has benefits, but it ultimately does not outweigh its harm.

COH1, as well as supporting Southwark Council’s position on the character and light impacts, put forward the position for housing.  COH1 position is that Lendlease have not followed Policy H8D of the London Plan 2021, as they have favoured an office block over building affordable (and we say particularly social rented) housing.

We made the case that the ‘limbs’ of Policy H8D are fulfilled on the facts of this case:

(a) demolition of affordable housing (including, but not restricted to, an estate redevelopment programme); and

(b) failure to replace the demolished affordable housing by an equivalent amount of affordable housing floorspace.

Demolition of Affordable housing  

We argued that Plot H1 land cannot be stripped of its historical context as land on which a demolished estate stood, despite permission to demolish being given in 2013.  There has been no significant intervening development on this land, Plot H1 was part of the land under the Regeneration Agreement with Lendlease and Plot H1 is regarded as the last part of the redevelopment process of the Heygate.  Therefore, we say that the mere passage of time is not enough to avoid the need to engage with policy H8D.  

Failure to replace Affordable housing

COH1’s case is that the reprovision of affordable housing is incomplete. Lendlease cannot fall back on the provision of so called ‘Early Housing Sites’, which were intended, but failed, to rehouse the residents of the Heygate.  

The affordable housing demolished on the site of the Heygate estate has not been fully replaced by the Early Housing Sites and cannot be included by Lendlease in the calculation of housing reprovision.  The reasons for this are:

  1.  Southwark Planning committee resolved to grant planning permission for the early housing sites in December 2008, four years prior to planning permission was granted for the demolition of the Heygate. At this point in time, Lendlease had no regeneration agreement with Southwark (although it was the council’s development partner). The regeneration agreement was only entered into in July 2010;
  2. The construction had commenced on the early housing sites prior to the grant of permission for demolition of the Heygate estate;
  3. The construction had even completed on some sites prior to the grant of permission for demolition;
  4. None of these units were provided on the site of the former Heygate Estate;
  5. These sites were not granted permission subject to the outline planning permission of Heygate estate; and
  6. They were not delivered by the developer (Lendlease) who was bringing forward the demolition of the Heygate. They were delivered by the registered social landlords in conjunction with Southwark council.

If these Early Housing Sites are not included in reprovision calculation, the loss of social rented homes across the Heygate site, compared to what has been delivered today, totals over 900.  This is appalling given the housing emergency in the borough and across London.

In addition to the above, we made the case that as the Plot H1 application is a ‘new’ standalone application (as opposed to part of the 2013 Masterplan) that Policy H8 (introduced under the 2021 London Plan), must apply as it would to any other brownfield site.  Furthermore, we raised issues of broken promises by Lendlease and misleading consultation and information presented to past and present local residents who were told Plot H1 would be a residential building.  We raised issues of the displacement of market traders, supported by Latin Elephant.  

For more detail on each of the parties cases, we suggest you read the opening statements and closing submissions which summarise the positions and how they relate to each other’s arguments:

Lendlease (Appellant):  Opening Statement and Closing Submission

Southwark Council (Defendant):  Opening Statement and Closing Submission

COH1 (Rule 6(6)) Party: Opening Statement and Closing Submission

Notable moments:

Below are a selection of some notable moments and quotes from the Inquiry:

  1. “…there is a housing crisis, not an office crisis.” (COH1 opening statement, quoting Southwark Council’s evidence)
  2. On 22nd September 2023, there was an admission from Jonathan Marginson (planner from consultancy DP9 working as a policy expert for Lendlease)  that there must have been active discussions between Lendlease and Southwark Council in the lead up to introducing the target of 60,000 sqm of office space in the Southwark local plan.  This came as a result of a recap of the timeframe – namely that the architect Friedrich Ludewig (founder of Acme) began work on this office block in 2017, around 4 years before the target for this level of office space was introduced  in 2021.
  3. On 15th September 2023 Jerry Flynn of the 35% campaign and part of COH1 defending COH1’s position in the stand brought the case for housing, and in particular social housing. Without COH1’s input the provision for social housing would not have been raised at all as no other party or witness made the case for this.  Mr Flynn noted in his evidence that only 48 out of the thousand plus Heygate households had benefitted from new homes from the Heygate redevelopment.
  4. The admission from Jonathan Marginson on 21st September 2023 that Lendlease did not provide any of the Early Housing Sites.
  5. The roll-back from Mr Pagani (daylight and sunlight specialist expert witness for Lendlease) on his assertions about residents in properties neighbouring Plot H1 and how much value this place on daylight.  In his evidence submitted prior to the start of the Inquiry, he stated

“A large number of properties seeing reductions are considered to be rented out for brief periods and often show fully drawn curtains and blinds even in broad daylight.

During my site visit it was also clear to see how the windows had accumulated a meaningful amount of dirt. This leads me to conclude that the occupants do not place a high value on the available daylight as Plot H1 currently stand.”

Following a site visit (facilitated by COH1) to meet one of the council residents in these properties, and in cross-examination, Mr Pagani accepted that some of the factors he relied on (as above) could not actually be used to reach a finding of lower value on daylight or sunlight.  These included a claim that residents of bedsits are merely transitory so there should be less weight given to daylight loss in these properties, in ignorance of the housing emergency which means many live in bedsits for years.  When challenged by Southwark Council and COH1 on views arguably hostile to working class communities, Mr Pagani’s rolled back  on this.

  • What is being proposed here is not what was envisaged when the Heygate was demolished. It is proposed as an alternative to what was envisaged by the OPP on plot H1. That means it has to stand on its own two feet as a suitable replacement for what was on the Heygate. We say that there has not been an equivalent amount of affordable housing floorspace provided following the Heygate’s demolition.”  (COH1 closing submission)
  • neighbours are absolutely entitled to expect that the planning system will protect them from unacceptable loss of (daylight) amenity.” (Southwark Council closing submission).
  •  If H8 means this then that has chilling consequences for scores of other estate regeneration projects which quite lawfully relied on directly off site provision especially to provide early decant options.” (Lendlease closing submission).

S106 negotiations

Southwark Law Centre’s ‘Planning Voice’ were instructed to led the s106 negotiations on behalf of COH1.

COH1 were not a party to the s106 agreement, but demanded to be part of negotiations. The main focus was the potential delivery of a health hub and/or affordable workspace. We made arguments that affordable retail should also be delivered to help displaced shopping centre traders, but this point was sadly not entertained.

Regarding the health hub, the developer tried to stretch the relevant planning policy to reduce the size and lease length, based on their own assessment of financial viability. We strongly resisted this and managed to keep our alternative interpretation on the table. It is now for the Inspector to decide which stance to take. We believe he was sympathetic to our case and hope that, if planning permission is unfortunately granted, we will at least win on these smaller points.

We also demanded that the developer to do everything they could (i.e. use “All Reasonable Endeavours”) to try and secure the health hub – given they claim to be so committed to it. However, the developer strongly resisted and we did not manage to get this into the agreement.

If no health hub comes forward, the developer must provide affordable workspace. We made sure that, if this happens, the full 25% rent discount is passed on to the end users. We also demanded that the space is fully fitted out at the developer’s cost, having learnt this lesson from the displaced shopping centre traders, who were expected to cover this hidden cost themselves.

What’s next?

The Planning Inspector will now consider all evidence and then return a decision.  Unfortunately, after consideration, the Secretary of State Michael Gove declined our request to call in the application (see background here).   Therefore, the final decision will lay with the Inspector.

Jerry Flynn of COH1 states:

“This was a hard-fought inquiry and the community objectors are pleased that we were able to make the case for housing, particularly affordable housing. The COH1 objectors included not just ex-Heygate residents, local campaigners and groups, such as the Walworth Society, but also new residents on the replacement development, Elephant Park.   We were united by our anger at developer Lendlease reversing their decision to build housing, to propose building a huge office block instead.  With the support of PILC and the Southwark Law Centre we were able to hold them to account for this reversal and now look forward to the Inspector’s decision.”

The legal team were:

Alexandra Goldenberg and Saskia O’Hara of the Public Interest Law Centre, ‘Gentrification Project’

Jed Holloway, Ariane Ordoobadi, Gabhan O’Tighearnaigh of Southwark Law Centre ‘Planning Voice’

Charles Bishop of Landmark Chambers.


[1] Lendlease argued this size of office block (60,000sqm target was a requirement in the local plan.  The Council and COH1 argued it was merely a target.

1Sep 2023

The anti-boycott bill: what is it?

1st September 2023|General|

Paul Heron is a lawyer, socialist and activist. He is the Legal Director and Senior Solicitor at the Public Interest Law Centre (PILC). Here Paul looks into the Government’s ‘Economic Activity of Public Bodies (Overseas Matters) bill, which is of major concern not only to groups such as the Boycott, Divestment, Sanctions (BDS) movement, but to wider democracy as a whole.

The Government’s ‘Economic Activity of Public Bodies (Overseas Matters) bill,‘ commonly referred to as the anti-boycott bill has just gone through its second reading in Parliament.

The anti-boycott bill: what is it?

The Government is proposing legislation with the clear objective of stopping public bodies such as councils, local government pension funds, and even universities from taking decisions and actions about how they spend their money. It has significant opposition from trade unions, campaign groups, charities, and individuals.

The anti-boycott bill significantly hinders public bodies from making conscious decisions allowing them to follow and comply with international human rights law. This includes limiting independent decision making by public bodies and restricting their right to decide not to invest  in companies implicated in the systematic suppression of Uyghurs by the Chinese government, the commission of crimes of apartheid and persecution against Palestinians by Israeli authorities and companies guilty of mass pollution.

Should the anti-boycott bill be passed as it stands, there is little doubt that it will impact decisions aimed at addressing deforestation, environmental contamination, as well as the mistreatment of children and workers.  However  the feeling of campaigners and trade unions is that the ‘driver’ behind this legislative effort by the Government is to stop initiatives advocating for Palestinian rights.  It comes at the same time as evidence is coming to light of Israeli embassy officials attempting to influence UK court cases.

The anti-boycott bill: why we should oppose it

The anti-boycott bill is set to erode local democracy, curbing the freedom of expression, and undermining peaceful and legitimate campaigns for social and environmental justice.

According to the provisions within the anti-boycott bill those public bodies will be mandated to disregard any “territorial consideration” in a manner that implies disapproval of foreign state conduct on political, economic or moral grounds – section 1(2). This phrasing appears designed to shield individuals and states involved in activities such as human rights violations, ecological harm, or aggressive conflicts. The bill therefore sets itself squarely to  prevent public authorities from making financial allocations or investments that are ethical and/or lawful. The bill proposes that in future such actions can only be undertaken if explicitly sanctioned by the Government. This is undemocratic.

Most people in the UK have genuine concerns regarding human rights and the environment. However, the anti-boycott bill poses a threat to their ability to campaign for public bodies to not invest directly or indirectly over illegal and unethical decisions. Notably, the anti-boycott bill seeks to stop public bodies to adopt ethical decision-making regarding financial decisions and investments. These actions are deeply unpopular with the majority of people in Britain who stand for fairness, decency, human rights, in defence of the environment and who do not want to see their savings or pensions invested in companies who involve themselves in illegal or unethical practices.

Are there any exceptions?

As stated above, section 1(2) of the anti-boycott bill establishes a broad prohibition preventing public bodies from allowing their procurement and investment choices to be swayed by political or moral objections to the actions of foreign nations with regard to a specific “territorial concern.” The term “territorial concern” is clarified as “a consideration primarily associated with a specific foreign region” according to section 1(3).

There are some exceptions. Under clause 3(5), the Secretary of State holds the authority to outline, through regulatory measures, specific countries or territories exempt from this prohibition. Moreover, the Schedule defines entities and functions that are immune to the restriction. The Schedule also lists a series of factors which the decision-maker may take into consideration when making determinations. These factors encompass scenarios involving potential violations of the UK’s international legal commitments, instances of labour-related misconduct, and cases of environmental wrongdoing.

Despite the exemptions mentioned it is specified in clause 2(7) that the Secretary of State is restricted from enacting regulations that would eliminate the prohibition on boycotts, particularly when the conduct of a foreign state pertains to Israel, the Occupied Palestinian Territories, or the Occupied Golan Heights. To put it differently, public entities are disallowed from considering the behaviour of foreign states concerning these three territories when making any pertinent decisions. This rule stands without any deviations. Any alteration to this regulation necessitates an amendment to the core legislation.

Conclusion

The bill’s impact will be anti-democratic. It centralises decision-making and sets out to stop ordinary people having a say – for instance – about how their local government pension is invested. There is no doubt that a significant Governmental aim is to cut across the Boycott, Divestments and Sanctions (‘BDS’) movement that has been born as a peaceful action to support and defend the rights of Palestinians.  BDS was initiated by Palestinians, and was directly inspired by the successful economic boycott of Apartheid South Africa.  As Mandela famously said in 1997 

“The United Nations took a strong stand against apartheid; and over the years, an international consensus was built, which helped to bring an end to this iniquitous system…but we know too well that our freedom is incomplete without the freedom of the Palestinians.”

The international action to defeat Apartheid in South Africa is one of the most successful international peaceful protest movements in recent history.  This bill seeks to make similar action illegal.  It sets the UK outside of international human rights and humanitarian law It must be opposed.

The Public Interest Law Centre supports the Right to Boycott campaign and its aim to stop this of legislation. It is supported by individuals, trade unions, charities, NGOs, climate justice, human rights, cultural, campaigning, and solidarity organisations. Sign the petition here and say NO to the anti-boycott bill.

Photography: Ash Hayes/Unsplash