The High Court in Bokrosova v London Borough of Lambeth [2015] EWHC 3386 (Admin); [2015] PLSCS 332 has quashed the decision of Lambeth council dated 9 March 2015, stating that its decision to stop consulting on refurbishment options for the Cressingham Gardens Estate and focus on regeneration alone was unlawful.
Cressingham Gardens was built in the 1960s and is a low rise, small scale estate of 306 homes, 213 of which are council homes. In February 2014, Lambeth council set up the Cressingham Gardens Project Team to consider the future of the estate, and put forward five options for discussion. These included: 1. Refurbishing the estate and bringing all council tenant homes up to decent homes standard, including the six void flats that have stood empty for over 16 years; 2 & 3. Refurbishing as in option 1, plus infilling to create new homes; 4. Partial demolition of the estate, with the net extra in new-build homes sold at top market price; and 5. Full demolition and rebuilding of the estate.
A three-month consultation was launched by Lambeth council in November 2014 when it wrote to tenants seeking their views.
Groups were set up to consider resident management options; wellbeing; green retrofitting; financial modelling; and test of opinion. These groups met between November 2014 and January 2015 and had not completed their reports when, on 26 February 2015, residents were contacted by the housing councillor of Lambeth council to inform them that Lambeth had: “…undertaken the necessary financial analysis on the refurbishment options (options 1 to 3)” and that “a paper is going to be presented to the council’s Cabinet in March 2015, which recommends that those options, which neither significantly reduce the costs to refurbish the estate to an affordable level nor deliver the number of new homes that the council expect to see, will not be consulted on further”.
The judicial review challenged the decision by Lambeth council to cease consultations on options 1-3 despite the financial aspect of the redevelopment not having been evaluated as an issue in the consultation process.
Eva Bokrosova, as well as other residents involved in the consultation, complained that the council had failed to discharge its consultation duties both at common law and under section 105 of the Housing Act 1985. It had not fed back to the Cabinet residents’ views expressed during consultation; and it had cut short consultation on the issue of affordability despite it remaining a live issue.
Mrs Justice Laing found for Ms Bokrosova and quashed the Cabinet decision of 9 March 2015.
Mrs Justice 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 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.
However, the judge has given the council permission to appeal. As a result of the judgment, Lambeth council has stated that 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. 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.
Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell
