Public Interest Law Centre

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2Jun 2021

Fighting for social housing at the Elephant

2nd June 2021|Gentrification, Housing|

In our latest guest blog Jerry Flynn, a social-justice campaigner from South London, reflects on the campaign against the redevelopment of the Elephant and Castle Shopping Centre. Through the 35% Campaign Jerry has sought to hold Southwark Council accountable for promises the local authority has made about the provision of social housing in new developments. PILC acted for Jerry in a recent case against Southwark.

The Elephant and Castle in south London is a key regeneration site in Southwark, a borough in acute need of social housing.  For a third of households, socially rented housing represents the only hope of a decent, affordable home. According to a 2019 report Southwark has 12,000 families waiting for new council homes.  Southwark council has promised to build 11,000 new council homes—but only over a thirty-year period.

Given these circumstances Southwark’s priority for the regeneration of the Elephant should have been simple: to build more socially rented housing now. In fact, Southwark only requires a small proportion—17.5%—of new Elephant developments to be social-rent housing units. This is less than the 25% required in most of the rest of the borough.

These percentages are supposed to be minimum requirements. In reality, more social units are built only in exceptional cases.  Developers often claim that they cannot provide even this modest amount, citing weak financial viability—which simply means they will not be making as much profit as they think they deserve.

Such was the position taken by Delancey, a big property developer active in the borough and the owner of the much-derided (but also much-loved) Elephant & Castle Shopping Centre. In 2016 Delancey, in partnership with Dutch pension fund, APG and the Qatari Diar Real Estate Investment Company, proposed demolishing the shopping centre and building a mixed residential development consisting of nearly a thousand homes for rent and about as much retail floor space as was in the shopping centre (dispersed across two sites)  There would be 35% ‘affordable housing’, but only 33 ‘social rent equivalent’ homes – ‘viability’ would not allow for any more.

By omitting a provision for affordable retail units which would have allowed for modest reductions in market rents, Delancey also made it clear that there would be no room in the new Elephant & Castle for local traders, most of whom are from black and ethnic minority backgrounds, with many coming from London’s Latin American community.

Mounting the campaign

Our Up the Elephant campaign drew together all those who opposed Delancey’s proposals, which was just about everyone apart from Southwark council’s Labour leadership.  Campaign groups included: Southwark Defend Council Housing; Latin Elephant, a local charity that advocates for all local traders; the Elephant Traders Association; the Green Party; the 56a Infoshop, a radical social centre;  the anti- gentrification website Southwark Notes; and  Southwark Law Centre. The campaign also drew in local Labour and Lib Dem councillors, including those who had hitherto been supportive of the Elephant’s regeneration. It won notable support from Sian Berry, co-leader of the Green Party.

Students and trade-union support from the London College of Communication (LCC) was another important element in the campaign.  The LCC is gaining a new campus from the redevelopment after agreeing to give Delancey an extra piece of land in exchange. Yet the college was happy enough to mount an exhibition bewailing the iniquities of regeneration in other parts of the world—much to the disgust of many of its students and staff. Social media and communications work by activists and sympathetic artists was vital for campaign fundraising.

The Up the Elephant campaign orientated itself around the progress of Delancey’s planning application, but did not confine itself to simply generating objections: it protested, demonstrated and made sure that decision-makers were fully aware of the strength of feeling against Delancey’s proposals.  As a consequence, Delancey made a number of concessions for fear of not gaining planning permission.  They promised 116 social rented units and affordable retail units, built some relocation space for traders and funded relocation costs.  Southwark also found some funding to help traders and provided more relocation space on more generous leasing terms, courtesy of an intervention by London Mayor Sadiq Khan.  Delancey duly got its planning permission, but only just—by one vote and after three committee meetings.

The legal challenge

But Delancey’s proposal remained a bad one.  The shopping centre may have been shabby, but it housed one of the largest bingo halls in Britain, much used by older people from black and ethnic minority backgrounds. The bowling alley next door was equally popular with younger people. Along with Ward’s Corner in Seven Sisters, the shopping centre had over decades become one of two social hubs for Latin Americans living in London.  Its other independent traders came from all over the world and had built successful businesses for themselves and their families.  All of this would be lost.  And while the affordable housing ‘offer’ was improved, it still did not meet Southwark’s minimum policy requirements.

After discussions with Southwark Law Centre, who put us in touch with PILC and barrister Sarah Sackman of the Francis Taylor Building,  a decision was made to challenge the planning permission by judicial review. Sarah enlisted David Wolfe QC of Matrix Chambers.  All worked ‘pro-bono’ and an Aarhuus convention cost cap limited our adverse cost exposure.

The main ground of our challenge was that the planning committee had been misled about the status of the funding for the social housing.  Delancey claimed it had a grant from the Mayor for this, while also committing to building the social housing without a grant.  We argued that if a grant was indeed in place, this gave scope for the committee to have sought more socially rented housing,  The judge found, however, that while there was ambiguity in reports to the planning committee, the committee was nonetheless sufficiently aware of the full funding situation and had therefore not been misled.

The judge also found that the reports only amounted to guidance and allowed council officers discretion in how the committee’s decision was put into effect in practice.  This had consequences.  Delancey’s simple undertaking—to either build the social housing or to give Southwark Council or housing association the ‘the land and sum of money sufficient for construction and completion of the social rented units’ to do so itself—became a more complicated arrangement, with three options inserted into the legal agreement for the development, two of which involved Southwark meeting upfront costs.  The judge ruled, against our arguments, that this was a fair rendering of the committee’s decision.

We also challenged Southwark and Delancey’s assertion that ‘social rent equivalent’ (with 3-year assured shorthold tenancies) and ‘social rent’ (usually with lifetime tenancies) were effectively the same. Once more, the judge disagreed and could not see any significant difference.

The court decision and lessons learned

The outcome of our appeal against the High Court decision was unfortunately no better.  The Court of Appeal found that while the funding position was ‘overstated’, it was not misleading, and that, in any event, no additional socially rented housing could have been sought by the committee because the scheme was not sufficiently viable (a routine, but effective, argument  against social housing provision) .  It also confirmed the High Court decision that the ‘instrument of delegation’—a very short document—rather than the committee report constituted the ‘resolution to approve’.

We are disappointed by this outcome, naturally, but not disheartened.  The legal challenge was an important part of our campaign, but not the whole campaign. The practical improvements described above would not have been gained if we had not demonstrated a willingness to overturn the whole scheme. We have also shown that, with will and determination, a broad-based local campaign can win concessions, even if not outright victory.

Our campaign will continue, because the regeneration of the Elephant is far from finished.  In particular, we will continue to support the many traders who did not get relocated and who are now negotiating for new market space at the Elephant.

The court’s decision raises the serious question of who is going to pay for the socially rented housing that our campaign’s hard work has secured.  Whatever the courts may have decided, we are pretty sure that the planning committee did not have it in mind that Southwark should meet this cost. Such an interpretation of the development’s legal agreement is one that Delancey may now seek to take advantage of.

More generally, the court’s decision demonstrates that not everything a planning committee thinks it might be approving gets into the finalised agreement—at least not in the way that it should.  If a planning committee wants to be certain that any particular measure or amendment is adopted and effected in a given way, it must be specified in the ‘resolution to approve’. This is a lesson both for campaigners and councillors who sit on planning committees.

 

22Jan 2020

Challenging Lambeth’s unfair treatment of homeless families!

22nd January 2020|Case Q&A, Gentrification, Housing|

We’ve been working with our friends at Housing Action Southwark and Lambeth (HASL) on a challenge to Lambeth’s unfair and misleading ‘Temp2Settled’ scheme. In the second of our series of interviews with PILC solicitors, we spoke to Helen Mowatt about how working with grassroots groups can help lawyers see the bigger picture when it comes to strategic litigation.

Can you tell us a bit about the Temp2Settled case?

When a homeless family presents to Lambeth as homeless, the council gives them a number of options. One option is Lambeth’s Temp2Settled Scheme. Under this scheme, if a household agrees go into private rented sector accommodation rather than council-provided temporary accommodation, the council will put them into a higher band on the housing register. (Councils decide who gets offered housing based on a priority ‘banding’ system. The higher your band the more likely you are to get housed). Families are advised they’ll have a much higher chance of getting permanent accommodation because they’ll be in band B instead of band C.

They’re also told that if they stay in band C they’re unlikely ever to get permanent accommodation—or that it could take years and years. Basically the council is saying: ‘You should go down the Temp2Settled route. Go into band B and you’ll have a much better chance of getting permanent accommodation.’

So what’s the problem?

The problem is it isn’t true! Families often think it sounds like a really good deal and they accept the offer. But what Lambeth council don’t tell them is that if they’re placed in private rented accommodation outside of the borough, they’ll be removed from the waiting list after two years if they haven’t been successful in securing a property.

We’ve got FOI data showing that only 2% of households needing a 2-bedroom property were accommodated through the housing register within a 2-year period. Far from having a better chance of securing permanent accommodation through Temp2Settled Scheme, people have almost no chance of securing accommodation within those two years, at the end of which they’ll be removed from the housing register.

What kind of people are being affected by this?

Many of those affected are families from South London’s Latinx community. The issue tends to affect migrant families for two reasons. One is that they are more likely to be new to the borough so they haven’t had a chance to build up time on the housing register before entering the scheme. The other reason is that—for language reasons—migrant families often don’t understand the nature of the scheme. They might not be aware of whether they’re in private rented accommodation or council temporary accommodation.

What are the potential consequences for families?

One consequence is that if you go down the private rental sector route you’re giving up your right to suitable housing. If there’s something wrong with your accommodation and you’re in the private sector, you don’t have the same rights as if you have a council tenancy. You can’t challenge the suitability of your accommodation in the same way and you don’t have the same rights when threatened with eviction.

People are giving up these rights in order to have a ‘much better chance’ of getting permanent accommodation’—but most families stand no chance of getting permanent housing through the scheme.

So the council is trying to ‘game’ the homelessness statistics by reducing the number of people on the list?

It appears that way. When they issue their homelessness figures they can say ‘we’re doing better than in previous years and we’re doing better than neighbouring boroughs’. Temp2Settled also helps them reduce the number of people they have a responsibility to house and get homeless families out of the borough. This is a big deal in a time of rising homelessness and huge housing shortages.

How have you worked with HASL to bring this challenge?

HASL have great links with the community in Lambeth—in fact, they’re part of the community. This means they can see what’s happening on the ground more easily than, say, a local law centre.

HASL initially referred a domestic violence case to us. We helped get the client into permanent accommodation. Then we started meeting up more and instead of just discussing individual cases we found ourselves talking about the wider situation with housing in Lambeth. Temp2Settled was one of the themes that emerged from those conversations.

One of the reasons we think this hasn’t been picked up before is that housing solicitors tend to work at the ‘micro’ level. They’re meeting clients’ needs case-by-case, so they don’t have time to look at the wider trends that are emerging.

What do schemes like Temp2Settled says about the culture of local authority housing departments—and what outcome are you hoping for from this case?

It appears that this is more than just negligence, but potentially bad faith. There’s a wickedness in the culture of some housing departments. People are seen as numbers and not as people. It doesn’t matter how vulnerable you are or what your circumstances are, the goal is to get the numbers down.
Of course, this mentality is related to the limited housing stock and to austerity. But councils need to be pushing back against that—not passing the pain onto vulnerable people.
Schemes like these also support the gentrification agenda of many London local authorities – it’s in the commercial interests of councils to get as many homeless and low-income families out of the borough as possible

If Lambeth council have deliberately misinformed people in an attempt to get their numbers down, we want them to admit this and apologise. We want all these families to be put back on the register. This would send a huge message to councils—that it’s not acceptable to put your targets ahead of the needs of the community.

Video – HASL member Susana explains her experience of the Temp2Settled Scheme

21Oct 2019

Defending the Elephant against profit-driven development!

21st October 2019|Case Q&A, Gentrification, Housing|

On Tuesday 22nd October at 9am there will be a solidarity demonstration outside the High Court to coincide with the start of the two-day hearing of Public Interest Law Centre’s judicial review of the proposed development of the Elephant and Castle shopping centre. For the inaugural PILC blog, we asked senior solicitor Paul Heron about the case and its wider significance. Can you tell us a bit about the case and what’s at stake for the local community? In essence this case is about ensuring that the new Elephant and Castle development provides a maximum amount of genuinely affordable housing for the local community. Our challenge centres on the agreement between Southwark and the developer, Delancey, around the number of social housing units to be provided through the project. Whilst social housing for working-class, migrant and ethnic-minority communities is the central issue, it is not the only thing at stake. Local traders are dissatisfied with the way the development scheme has been handled by Southwark. Some will not get spots in the new development while others will see their rents rise. We hope a positive outcome in this case will encourage Southwark to think again about their ‘regeneration’ agenda and its impact on the local community. What are the key legal issues that the judge is going to be deciding upon during the hearing? We are challenging whether the development scheme as proposed by Delancey is in line with Southwark’s planning policy. Delancey have claimed the most they can deliver in terms of affordable housing is 116 social housing units—out of nearly 1000 apartments that will be built. But they made this offer before claiming to have secured a GLA grant of £11.25 million! The local community want the GLA grant to be used to increase the provision of social rented units—instead of bolstering Delancey’s profit margin. We think Southwark have undersold themselves with this development, possibly as a result of not understanding what they could get. We’re also concerned that there may actually be insufficient money to complete the scheme and that even the paltry commitment of 116 social housing units will not be met. Southwark have given Delancey land and planning permission on the condition they provide a specified number of units. But there’s the prospect of Delancey turning round and saying to Southwark ‘we will give you money instead’. The sum offered in such a scenario is likely to be inadequate to the task and the units may not be built. Defending housing as lived space against profit-driven development means mobilising communities. How have you worked with campaign groups to bring this case to court? The groups we’ve worked with are Up the Elephant, 35% Campaign, Southwark Defend Council Housing and Latin Elephant. We’ve also reached out to traders. These campaigners are massively involved in our case and they’ve been crucial to the JR being brought. One or two have a real interest in planning law and are veterans of the Aylesbury and Heygate Estate campaigns. Our case has benefitted from both their expertise and their links with the local community. The campaigners have been involved at every stage. We’ve met with them to discuss what victory might looks like and how to press home the advantage from a win in court. We’ve also worked with them to plan for the possibility of defeat. The judicial review had been brought on a crowdfunding basis. Because it’s an environmental case we have been able to engage Aarhus Convention rules to cap our client’s costs. The campaign has done a brilliant job in raising the £5000 needed to protect the client. On October 22nd a coach full of campaigners will be coming up from the Elephant. They’ll be outside the High Court to remind the judge of the extent of local opposition to the way this development has been carried out. The effect of displacement due to ‘urban renegeration’ in cities around the world has been compared to the devastation caused by war and natural disasters.[1] What do you think are the broader implications of this case for anti-gentrification campaigners? Are we in an era where the best we can hope for is to limit the damage caused by profit-driven development? There’s an extent to which we are talking about damage limitation. Opposing these kinds of projects in London is generally a rearguard action of one sort of another, especially in boroughs like Southwark, Newham and Haringey where the Labour party establishment has traditionally been right wing and ardently pro-‘regeneration’. Our strategy has been to use the threat—and reality—of legal action to wring concessions out of councils with respect to local residents and traders.  The message needs to be ‘we’re watching you—go back and make a better decision’. We believe that a strong fight—and ideally victory—in cases like these can provide a springboard for future campaigns and re-galvanise community action against the commodification of lived space. In the context of broader developments in Southwark and elsewhere, that would be a pretty substantial result.
[1] David Madden & Peter Marcuse, In Defense of Housing, Verso: London and New York, 2016, p.3