Published On: 28th September 2023Categories: 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.