Removal of consultation options over housing estate "unlawful": High Court

A High Court judge has ruled that a London borough’s decision to stop consulting on refurbishment options for a housing estate and focus on regeneration alone was unlawful.

The case of Bokrosova v London Borough of Lambeth [2015] EWHC 3386 (Admin) (24 November 2015) concerned the Cressingham Gardens estate in Lambeth, which was built in the 1960s. It has 306 homes, of which 213 are council homes.

In February 2014 five options were put forward for discussion. The first three related to refurbishment, while options four and five involved regeneration with either partial or full demolition.

The council launched a consultation in November 2014, with groups set up to obtain residents’ views.

But Lambeth’s Cabinet member for housing wrote to residents on 26 February saying that even using a best-case scenario the lowest cost for refurbishment was still three times what the council could afford.

Cllr Bennett also said a paper would go before the council’s Cabinet recommending that the refurbishment options should not be consulted on further.

On 9 March 2015 Lambeth’s Cabinet resolved:

• That the cost estimate to bring the estate up to the Lambeth Housing Standard (LHS) was £9.4m (an original LHS business plan had included a provision of £3.4m);
• That there was then no provision for the cost of a refurbishment-only programme in the council's LHS programme, and the council had a duty to say what was feasible within budgetary constraints;
• To recommend that officers consult further on options for significant regeneration of the estate (as set out in the report) and that a viable regeneration proposal be brought back to the Cabinet in May 2015 with full supporting evidence;
• That there was a commitment to work with residents to develop the regeneration proposals.

The claimant, Eva Bokrosova, subsequently challenged the decision to remove the refurbishment options from the consultation.

In the High Court Mrs Justice Elisabeth Laing said the four questions she had to answer were:

(a) Was Lambeth's decision on 9 March 2015 to stop consulting on options 1, 2 and 3 unlawful?

(b) If so, did it appear to her to be highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred ('the section 31(2A) question')?

(c) If so, were there nonetheless reasons of exceptional public interest for granting relief to the claimant ('the section 31(2B) question')?

(d) If so, was there undue delay in making the application for judicial review and did she consider that the granting of the relief sought would cause substantial hardship to, or substantially prejudice the rights of any person or be detrimental to good administration ('the section 31(6) question')?

Mrs Justice Elisabeth Laing said the decision on 9 March 2015 was a decision to renege on the section 105 Housing Act 1985 arrangements, which she described as a “detailed and sophisticated programme of consultation”.

The judge said the question was whether it was lawful for Lambeth to reject options 1-3 without completing the process which it had advertised to tenants and, thus, in breach of the section 105 arrangements it had chosen to make.

Mrs Justice Laing added that the impression she had formed from the documents as a whole was that the council considered from the outset that it was very unlikely to be able to afford to refurbish the Cressingham Gardens estate but that it considered that it was important to explore thoroughly with the tenants whether that was so, and if so, why.

The judge said she did not need to decide whether, as a matter of law, the council could have stopped the consultation if there had been a sufficiently important change of circumstances. She assumed, without deciding, that it could have done so.

The High Court judge said she was not satisfied, on the evidence, however that enough changed in February 2015 to stop consulting on options 1-3, contrary to the terms of the section 105 arrangements it had published. By removing those options, it had acted unlawfully.

Mrs Justice Laing suggested that the application of s. 31(2A) to the case was not straightforward, but she concluded that the test in that section had not been met.

The judge added that if she was wrong about that, she would have decided that it would not have been appropriate to grant relief for reasons of exceptional public interest.

On the issue of delay, the judge found that the claimant had acted promptly throughout. “That the claim was not lodged sooner, was, in part, because of the time it took for the lawyers to investigate and advise, and for legal aid to be granted,” she said. “It was also partly because of the council's equivocations in the pre-action letters about precisely what it had decided.”

Responding to the High Court ruling, Cllr Bennett said: “We are disappointed at this judgment, but we will fully comply with the judge’s decision. We will take a report on the proposals back to Cabinet as soon as possible, and residents will have their chance to comment on all the options during that process.

“However, we have said previously that full refurbishment of the estate or a significant proportion of the estate is currently unaffordable within the constraints of the Housing Revenue Account.”

Cllr Bennett added: “After detailed work with residents and experts the council concluded in February 2015 that refurbishment was unaffordable and that to continue to consult on something that could not be delivered would be misleading to residents.”

The council said it had already drawn up proposals to address the issues highlighted by Mrs Justice Laing, and give residents and other interested parties the opportunity to express their views on the options for improving Cressingham Gardens.

As a result of the judgment, a new report will be taken to Cabinet, covering all five of the options put forward. In the process of preparing that report, residents will be able to give their opinion on each option, including on its affordability, Lambeth said.

“This process will start immediately, as the council recognises that all residents will need to have certainty about the future of their homes as soon as possible,” the local authority said, adding that it would also be holding more meetings with residents in order to discuss the best way of securing lasting improvements for the estate.
 
A letter explaining the judgment and its implications, and outlining what the council plans to do in response, is to be sent to every household on the Cressingham Gardens estate.

The claimant’s lawyer, Ugo Hayter of Leigh Day, said: “We are very pleased with this judgment from the High Court.

“The decision by Lambeth Council did not take into consideration the opinions of the vast majority of the residents on the estate who have made it clear that they favoured refurbishment over demolition.”

Hayter added: “The judge has made it clear that all options are now back on the table and Lambeth Council must re-consult in relation to the refurbishment options and the redevelopment options. We sincerely hope that Lambeth now does this, on a fresh and open-minded basis.”