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.
