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Javid rejects Aylesbury estate CPO as breach of human rights

Communities secretary Sajid Javid has quashed a request for a compulsory purchase order that would allow work to start on the regeneration of south London’s Aylesbury Estate

The London Borough of Southwark had applied for an order to buy out leaseholders on the first phase of the redevelopment – for 830 homes designed by HTA Design.

But Javid has backed a planning inspector who said the proposal would breach the residents’ human rights.

Javid’s decision letter said that he ‘considers that the proposed purpose of the order will have considerable economic and social dis-benefits in terms of consequences for those leaseholders remaining on the order land’.

The planning inspector (see full report below)  found that the council adopted ‘extremely low valuations’ to compensate leaseholders for their properties because it failed to set aside enough money within its capital programme.

His report said: ‘The average offer to Aylesbury Leaseholder Group is £187,000 whilst a flat on the nearby Camberwell Fields development is £459,000.’

He said that most leaseholders would be forced to leave the area or invest in a new, more expensive property.

‘For elderly residents, who are of an age where they would probably be unable to obtain a mortgage to make up any shortfall and [whose] future earning potential is likely to be limited, using their savings and other investments would severely limit their ability to choose how they spend their retirement and the use to which they put their savings and investments,’ he said.

In addition, black and ethnic minority residents would be likely to be disproportionately affected because they would have less ability to retain cultural ties if they had to move out of the area than white British residents, Javid concluded.

The impact on children’s schooling could harm children’s exam performance and their school reports, according to the decision letter.

Javid also agreed with his inspector that the environmental impact of the scheme was only neutral.

Mark Williams, cabinet member for regeneration and new homes at Southwark Council, said: ‘This is an extremely disappointing decision by the secretary of state, and the council will be reviewing the detail of the report and the decision before commenting further.

‘We are, however, committed to the regeneration proposals and will continue to negotiate with leaseholders on all phases of the regeneration programme, to buy back their properties and allow the work, which is supported by the vast majority of residents on the estate, to move forward as soon as possible.’

The council voted to grant planning permission for the redevelopment the site and outline planning permission for the remainder of the estate in April 2015. The wider proposals range from low-rise terraces to towers of up to 20 storeys, and feature elements designed by HTA, Mae, Hawkins\Brown and Duggan Morris (see AJ 25.07.16).

The permitted first phase scheme includes the demolition of the existing buildings and redevelopment of the Order Land to provide 830 mixed-tenure dwellings, a flexible community use/early years facility or gym, plus public and private open space.

The existing estate was designed by Hans Peter ‘Felix’ Trenton and completed construction in 1977.

In 1997, Tony Blair made one of his first speeches as prime minister on the Aylesbury Estate, to demonstrate his commitment to improving life for the poorest in society.

Last year, a block on the estate was occupied by a group of housing activists protesting against the demolition of the estate and the gentrification of London.

The regeneration of the estate has also become a rallying point for campaign group Architects for Social Housing (ASH).

HTA was contacted for comment.

Readers' comments (2)

  • This decision shows a step in the right direction. Too many politicians and economists have demonstrated a desire to demolish everything from the 1960’s as ugly and outmoded ( but moreover Modernist in the 1980’s when a plan-led system was first brought in in 1988- hardly The English Law of Precedent- the RIBA is what now?) and have replaced it with worse and less principled mass housing.

    Not having visited this estate but having seen it shown on Channel 4 ident (who really should have shown a bit more compassion for the residents- if they lived anywhere except Britain they would.) I would guess that a lot of the structure is sound and can be adapted - as in some other regions of the country. Self build can also be regeneration by the people themselves in a community with supervision by professionals. Much council housing from the past was soulless but not necessarily impossible to humanize with a bit if imagination.

    Already in Southwark the Octavia Hill Estate was sold off a decade ago by the Church Commissioners with warnings about how affordability would vanish in London. Developers have taken control of what used to be departments of Government including social care and the idea that Churches and charity would substitute the State is divisive .

    Now that London has an elected Labour Mayor it should be remembered that Clause 4 was abolished under New Labour who brought in the idea of a London Mayor in a referendum, and the land held in common – by the council in this case- is the means of production. Why shouldn’t tenants work hand in hand with builders and the community in this vast scheme but with proper professional guidance for a long lasting investment that suits everyone's purposes?

    It is not merely Human Rights legislation that can be used if community and green principles are to the point: the 1975 ICOMOS European Charter of the Architectural Heritage can also be invoked. Conservation Law is divisive and pointless when operated by the dead and conflicting hand of councils and ‘the law’ and soon there will be nothing left of the post war era, which included an optimism dating back pre-war and before .

    It is time there was a separate apolitical professional body to decide on the built environment, including public housing, since it is the people’s private habitat. Bats, newts and toads get more consideration in the present scheme of things.

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  • A lot has been written already about Friday’s decision by the Secretary of State for Communities and Local Government, Sajid Javid, to accept the Government Inspector’s recommendation not to confirm Southwark Labour Council’s Compulsory Purchase Order on the homes of leaseholders on the First Development Site of the Aylesbury Estate regeneration. But in the understandable excitement at this rare victory, not all of it has been accurate. The London News even printed an article by Toby Porter, a former journalist for the Daily Mail, that confused the objections raised by leaseholders with the reasons why the Secretary of State has refused the Compulsory Purchase Order.

    As the letter from the Department for Communities and Local Government shows, most of the objections the leaseholders raised have in fact been rejected by the Secretary of State – specifically:

    – That social housing will not be provided on the new development: an objection he ignores, as you’d expect of a former banker working for a political party profiting from London’s housing boom;

    – That Southwark Council’s redevelopment plans are unviable: he concludes, to the contrary, that they are;

    – That the refurbishment of the estate was not considered as an alternative to demolition and redevelopment: he agrees it wasn’t, but despite this concludes on the evidence – or rather, on the lack of it – that refurbishment is unviable;

    – That the scheme will not benefit the wider area: although this is one of the legal conditions of issuing a Compulsory Purchase Order, since these objections are to its effects on the leaseholders making them, there is no obligation for the Secretary of State to consider such a claim – which he doesn’t.

    So despite initial appearances to the contrary, the former Managing Director of Deutsche Bank hasn’t developed a sudden concern about the social cleansing of London’s council estates. The actual reasons the current Secretary of State gives for refusing the Compulsory Purchase Order are listed in the letter under the following paragraphs:

    ‘It will have considerable economic, social and environmental dis-benefits in terms of consequences for those leaseholders remaining on the Order land.’

    ‘The deficiencies of the scheme include the number of dwellings that fail to meet the Council’s adopted standards for sunlight and daylight, and the extent of overshadowing to the proposed amenity areas.’

    ‘The Council has not taken reasonable steps to acquire land interests by agreement.’

    ‘The interference with residents’ (in particular leaseholders’) Article 8 rights is not demonstrably necessary or proportionate, taking into account the likelihood that if the scheme is approved, it will probably force many of those concerned to move from this area.’

    ‘The interference with residents’ peaceful enjoyment of their property was not necessary to control the use of property in accordance with the general interest, and accordingly that the interference with Article 1 of the First Protocol was not proportionate.’

    To clarify these last two reasons, under the European Convention on Human Rights to which the Secretary of State refers, everyone has: ‘the right to respect for his private and family life, his home and his correspondence’ (Article 8); and ‘is entitled to the peaceful enjoyment of his possessions’ (Protocol 1).

    ‘There are significant negative impacts on protected groups if the Compulsory Purchase Order is confirmed.’

    Under Section 149 of the Equality Act 2010, from which the ‘Public Sector Equality Duty’ arises, this consideration – which makes particular reference to the age and ethnicity of the leaseholders and the disproportionate negative effects the Compulsory Purchase Order will have on elderly residents unable to stay in the area, children forced into new schools, and residents from black and ethnic minorities separated from their cultural communities – makes up by far the largest section of the letter, and has the most potential for all residents’ rights. However, its implications are qualified by the following statement, which is much more in keeping with the considerations of a Tory Minister:

    ‘Mitigation of negative Public Sector Equality Duty effects – by suggested modifications to the Order – is in practice not possible. Full planning permission has already been granted and it would therefore not be practical to require changes which could not in practice be put into effect.’

    All of which leads the Secretary of State to the following conclusion:

    ‘He considers that potentially there is a good opportunity for the Council to work positively with the remaining leaseholders to alleviate the negative aspects he has highlighted above with a view to resubmitting an Order in due course to achieve successfully the objectives set out in the planning framework.’

    So, in a further effort at reaching ‘agreement’, we can expect Notting Hill Housing Association to throw a large amount of money at the leaseholders to compensate them for their relinquished human rights, and in doing so relieve Southwark Labour Council of its duty to public sector equality. As the letter states very clearly:

    ‘Compensation is not a relevant consideration in relation to whether the Secretary of State should confirm the Order because this issue is dealt with separately by the Upper Tribunal.’

    Which I believe in legal terms is what’s called ‘passing the buck’.

    However, the power of leaseholders over their homes has been greatly increased, which definitely makes this decision a victory for those fighting the demolition of their homes. But we should be clear about exactly what that victory is based on, which is the property rights of leaseholders, not what some of us mistakenly understand by human rights. If nothing else, the increased compensation leaseholders can demand might make developers and housing associations like Notting Hill Housing think twice about getting councils to issue Compulsory Purchase Orders.

    But potentially the most useful part of this document is the long section on Public Sector Equality Duty (paragraphs 23-33). Here the considerations of the Secretary of State this duty gives rise to are only sited in the context of the leaseholders who made their objections to his Department; but there is an argument to be made that the negative effects of being moved away from community support networks are just as applicable to tenants, and that simply re-housing them elsewhere doesn’t mitigate those effects.

    This is, perhaps, where the real victory lies in this decision by the Secretary of State: not in the property rights of leaseholders, but in the potential for articulating the human rights of all residents whose homes are threatened by estate demolition schemes. Article 8 of the European Convention on Human Rights, to which the Secretary of State refers, protects a person’s ‘right to respect for his private and family life, his home.’ This opens the possibility to argue that, even though they don’t own the property, a tenant’s council flat is their home, and therefore that its demolition, their eviction from it and relocation to a new property against their will, is an infringement of their human rights to respect for that home.

    The other opportunities this decision opens to those of us fighting estate demolition schemes is that if arguments are made for the viability of refurbishment – as I believe they weren’t for the Aylesbury Estate – and alternatives to demolition are proposed before planning permission is granted, then the Secretary of State is under obligation to consider them, or at least to consider why a given council didn’t consider them, or at least to consider their considerations. Unfortunately, by the time objections to a Compulsory Purchase Order get to his Department, planning permission will already have been granted; and challenges to whether councils have genuinely considered options other than demolition properly belong in judicial reviews by the High Court. But in our own struggle against Lambeth Labour Council, ASH are in the process of showing that their rejection of our proposed alternatives to the demolition of Central Hill Estate was based on fabricated figures, false evaluations, deliberate misunderstandings and a complete refusal to engage with us. So we imagine that they, and other Labour Councils implementing estate demolition schemes across London’s boroughs, will be studying the Secretary of State’s decision closely.

    As to why he made it, perhaps the Tory Government is worried about the growing power of Labour Councils in London, which – as the July Progress Conference held by the right-wing Labour cabal demonstrated – is where the Labour Party sees its future power base over the next decade. Perhaps another, wealthier, more powerful developer wants a cut of the Aylesbury pie, and convinced the Secretary of State to scare Notting Hill Housing Association away. Who knows? But a precedent has been set, and we need to use it to save the homes not only of leaseholders, but also of the tenants that make up the majority of residents on London’s housing estates, and who – not because of their age, disability, ethnicity, gender, pregnancy, marital status, sexual orientation or religion, but because of their economic class – are disproportionately and negatively effected by an estate demolition programme that is socially cleansing the working class from London.

    Simon Elmer
    Architects for Social Housing

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