Published On: 1st June 2021

The Court of Appeal has upheld a High Court decision allowing developers Delancey to proceed with the demolition and redevelopment of the Elephant and Castle Shopping Centre.

The Court found that there were no grounds for reversing the High Court’s decision.

The legal challenge was mounted as part of a hard-fought four-year campaign which brought together housing campaigners, students, tenants’ groups, local councillors and trade unionists in the fight for more socially rented housing and a better deal for traders displaced by the proposed development.

The decision will allow the mixed-use development of new shops and homes to proceed. with Out of 979 new homes 116 will be social rent units.

In the course of the legal battle Southwark Council conceded that a change was needed in its legal agreement with Delancey in order to secure socially rented housing.

Improvements won by the campaign

Despite this legal defeat, the Up the Elephant Campaign secured many improvements to the original redevelopment proposals:

  • Increase in socially rented housing from 33 units of social-rent equivalent owned and managed by developer to 116 proper social rent units owned and managed by the council or housing association
  • Provision of affordable retail space
  • An established traders’ panel
  • Temporary traders’ premises on Castle Square
  • Trader relocation and assistance fund of £634,700 and £200,000
  • 15-year affordable retail lease (rents to be held at 75% market Yr 6-15)

These are all improvements against the baseline of the original application made in October 2016

Jerry Flynn of Up the Elephant said:

 ‘We are naturally disappointed that the court has not found in our favour, but we can be pleased with the victories we have had in our fight with Delancey and Southwark.  There was zero proper social rented housing to begin with and it is only by the efforts of local people that we have the 116 homes now promised.

But this socially rented housing still has to be delivered and Delancey’s track record shows that it is practised in passing these costs back to the public purse.  We will continue to campaign to make sure that we get the promised 116 social rent units and that Southwark does not have to pay for them.’

There have also been gains for the traders – many now have somewhere to move to. [But there is] not enough space for everyone who needs it and traders are still in negotiation with Southwark for a new market space.  We will continue the fight to get them a better deal, alongside the Latin American community who have made the Elephant their home.

We also got together a great legal team and are very grateful for the part that they have played in this battle, which has shone a light on the advantages our planning system affords big developers like Delancey, even when they fail to meet their affordable housing obligations.  We will continue the fight to change this.

Tanya Murat of Southwark Defend Council Housing, which supported the campaign, said

‘We lost the legal fight, which was always the most likely outcome as planning law protects developer profits.

But Southwark Council could have stopped the Elephant and Castle scheme by refusing to take up CPO powers. Instead they sided with developer Delancey, a firm who partner with the Qatari government, have taken millions in taxpayer funded loans and are implicated in the ongoing cladding scandal. We won’t forget that.

This has been an inspiring campaign which has proved that if you fight for more you can get it.  There was no affordable retail space, trader’s panel or trader’s relocation fund before we began our campaign. We won all these concessions from Delancey, although sadly many traders will still be left out in the cold.

It is a tragedy that we have lost the opportunity to rehouse more people who rely on council housing for a decent home.  Southwark has a policy that should have got us at least another 55 socially rented homes and even that would have meant less than 200 out of nearly a thousand new homes.  Southwark must stop caving in to developers like Delancey if we are ever going to solve the housing crisis.’

Paul Heron of PILC, solicitors for the claimant Jerry Flynn, said:

‘Southwark Council should now be on notice that local people expect the maximum amount of affordable and social rented housing from major developments and will challenge any that do not provide it.  While we have lost this case, we have demonstrated we have the capacity to hold Southwark and big developers to account and we will not hesitate to mount more challenges where we think it is justified.’

Sally Causer of Southwark Law Centre, which also supported the campaign, said:

We applaud all the people who have fought so hard to save the Elephant and Castle community. Although the result is disappointing, we can’t imagine how much worse the situation for traders and the community would have been without the campaign. The work goes on. The campaign has secured a commitment to an over-300% increase in social rent units. Southwark Law Centre will continue to support traders to make sure they get the best deal and work with campaigners to ensure that the commitment to social rented housing is honoured. We hope that Southwark Council will also apply proper scrutiny to the development’.

The legal challenge

The appeal was heard by Sir Keith Lindblom, Lord Justice Baker and Lord Justice Lewis at a remote hearing on 16 and 17 March 2021.  The judgement (Case No: C1/2020/0447) can be found here.  The appellant was Jerry Flynn, a member of the 35% Campaign and the Up the Elephant campaign. The defendants were Southwark Council and Elephant and Castle Properties Ltd.

Jerry Flynn was represented by barristers Sarah Sackman of the Francis Taylor Building and David Wolfe QC, of Matrix Chambers, instructed by the Public Interest Law CentreSouthwark Law Centre also assisted with the challenge.

The appeal was against a High Court decision upholding Southwark Council’s approval of plans to redevelop the shopping centre. The original case was heard at the Royal Courts of Justice on 22-23 October 2019.

The challenge focused on socially rented housing in the mixed-use scheme.  Developer and shopping-centre owner Delancey have permission to build nearly a thousand new homes, but only 116 will be socially rented and these will not be provided for nearly ten years.  The challenge argued that there could be, and should be, more social housing and that there was doubt that even the 116 social rent units promised will be provided.

The demolition of the centre will displace independent traders, half of whom have been allocated no space in Delancey and Southwark’s relocation plans.  Many of the traders are from Black and Minority Ethnic backgrounds. The Elephant’s Latin American community fear that the development will destroy a vital social hub:  http://35percent.org/2019-03-30-no-room-for-traders-in-the-new-elephant/

The hearing was a ‘rolled-up’ hearing, meaning that both the decision on permission to apply for a judicial review and the case itself were dealt with together.

The order for the hearing noted that the application was “…one of those exceptional cases where the public interest in the issue which the claimant raises is such that if permission is refused this should occur after a hearing.”

The barristers for the challenge were Sarah Sackman of Francis Taylor Building and David Wolfe QC of Matrix Chambers.

Background

The Up the Elephant Campaign is a coalition of local people and groups fighting for a fairer regeneration at the Elephant and Castle have made a legal application to overturn the planning approval for the redevelopment of the Elephant and Castle shopping centre.  Over £11,000 was raised through crowdfunding to support the case:

https://www.crowdjustice.com/case/stop-the-elephant-shopping-centre-destruction/

https://www.crowdjustice.com/case/save-the-elephants-diverse-com-appeal/

Planning approval for the demolition and redevelopment of the shopping centre was granted to its owners Delancey on 10 July 2018, two years after a planning application was submitted in Oct 2016 (ref 16/AP/4458).  The application generated over a thousand objections and was deferred on three occasions.

The mixed-use development is being undertaken in partnership with the University of the Arts London. It will occupy two sites, including the sites of the current London College of Communication aand the Elephant shopping centre, both of which are to be demolished.  The LCC will get a new campus and there will be a new Northern Line tube entrance.

There will be 979 new Build-to-Rent homes of which 330 will be “affordable”, but only 116 will be social rent units.  There will be about the same amount of retail floorspace as at present.