Judicial Domicide

DAY 8 (FINAL DAY): Pemberstone v. SaveOurHomesLS26

Jay Dee — Fri, 16 Oct 2020 10:15:31 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

The Planning Inspector has confirmed at the preliminary part of Day 1 of this appeal inquiry that no objections have been raised with regards to us ("Judicial Domicide") live tweeting the Planning Inspectorate Appeal Inquiry. We, ("Judicial Domicide") must state that this is not intended to be an official, accurate, nor verbatim transcript, but it is recorded here by us to serve the purpose as a true record of the inquiry hearing(s) as we observed and recorded. We have compiled the below from live tweets, our fast notes taken during the observation of the hearing as well as other external sources. There are also areas where we did not observe and/or we had connection issues which resulted in the loss of being able to observe. ‌
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‌This is Day 8 and the final day of the Appeal inquiry of Pemberstone v. @SaveOurHomeLS26.

Closing Submissions on behalf of Save Our Homes

The Legal Framework

To avoid over burdening the Inquiry with extensive legal submissions, I do not intend to set out the applicable law in detail, particularly given that it is largely uncontroversial. I simply indicate here the extent to which SOH is in agreement with the submissions made by others and draw out the important relevant points that set the context for the issues that follow.
The principles set out by the Appellant in opening as to the interpretation and application of s.38(6) of the 2004 Act are agreed.^[1]
It is agreed that the proper approach to alternative schemes is summarised by the Court of Appeal in R (Mount Cook Land Ltd) v. Westminster CC^[2]. In accordance with the principles set out by the Court there, I submit that the relative advantages of the alternative of a renovation scheme are clearly material to the determination in this case. This is because this is plainly not a case where there is no conflict with policy or other planning harm^[3]
The reason for this is that, as set out below, the proposed development includes the total loss (by demolition) of a valued non-designated heritage asset, contrary to policy P11 of the Core Strategy and the relevant heritage paragraphs in the NPPF. It will also cause the destruction of a strong, vibrant, healthy community, contrary to the aims and aspirations of both the development plan and Government policy. And it will interfere with the residents’ rights to a home under Article 8 of the European Convention on Human Rights. In this latter respect, SOH agrees with the submissions of the Council (at paras 25 – 35 of its Opening).
For the avoidance of doubt and for completeness, the Appellant’s legal propositions on landlord and tenant law and on the PSED are not disputed (see paras 31-35 App’s Opening).
As to the designation of the Airey homes as ‘defective’ under the Housing Defects Act 1984, it is clear from the legislation itself and from the House of Commons Library Note that the designation was a recognition of a structural defect which had valuation consequences for the buildings concerned. The purpose of the designation was to enable affected purchasers to access public funding for repairs. There can be no suggestion (and other than perhaps Dr Usher, it does not appear that anyone is making any such suggestion) that the designation under the Act amounted to an order condemning the housing or designating it as unfit for habitation.
I now move on to consider the main issues identified by the Inspector on the first day of the Inquiry.

The Inspector’s Main Issues

The effect on the local community of the loss of the existing homes on the appeal site

I said in Opening that, if allowed, this proposed development would have a devastating effect on the residents of Sugar Hill Close and Wordsworth Drive. The evidence given at this Inquiry has proved that incontrovertibly to be the case.
It is important to remember that the proposal is not simply a housing development. The planning application itself expressly includes the demolition of the 70 existing dwellings.
Mrs Readman gave compelling and unchallenged evidence as to the effect that the redevelopment would have on her and her family and on her neighbours and friends on the estate. She explained her own involvement with the community, having previously run the local play group and now being a teaching assistant at the local primary school. She and her husband are also active in local sports club and have been active participants in the local rugby club.
She set out the many community activities that take place, including the Christmas street party, the heritage day, the meetings and social gatherings. She spoke of how the children play together in the street and how even relatively new residents feel welcomed, supported and very safe here.
Mrs Readman explained the many connections that have been made between residents of the estate, their mutual support network and the support received from others in the neighbouring housing beyond the estate. She spoke powerfully of the fears and anxieties of three particular residents (Irene, Hazell and Susan) who have lived here for 61, 16 and 12 years respectively (see CR appx 4). She explained how Irene’s grandson also lives on the estate and specifically moved there to be near, and to help care for, his grandmother.
Mrs Readman spoke knowledgeably about the effect that the redevelopment will have, and is already having, on the children on the estate, causing anxieties about the loss of their homes, having to change school and as to the loss of friendships.
Far from ‘perpetuating existing inequalities’ (in Dr Buroni’s words) it is plain that this community and this estate provides the individual residents with support, safety, dignity and pride. This is further reflected in the many written objections made to the planning application. Mr Teasdale correctly describes this community as having created “something very special indeed” (proof last para).
Both Mrs Readman and Ms Bruce explained the good quality living conditions that the houses themselves provide. They are spacious with good sized gardens in a location close to the countryside and near valued amenities such as the sports centre. Any complaints as to their condition arise only from the poor maintenance regime in recent times. The structural issues are not affecting the residents’ living conditions – no cracking, movement or damp is experienced (XC CR).
Dr Buroni, for the Appellant, sought to downplay the residents’ own experiences and representations. He had adopted an approach that he, as an expert, knows best. Only under some pressure in cross-examination did he accept that the residents’ views and understanding of their own housing needs were valid and relevant. He was dismissive of the residents’ assessment of their own living conditions and the value of the houses to them. Whilst ultimately accepting (B xx AB) that the condition of the properties is not currently causing poor health, he had a clear and arbitrary pre-disposition against what he termed “1950s housing”.
It was clear that he had not undertaken any qualitative assessment of the particular community that would be affected and he was uncertain as to the precise way in which they would be affected (for example he changed his mind in evidence as to whether the protected tenants would be required to move twice or only once). His assessment of the impacts that the disruption and displacement would cause to the community was confined to two elements of his multi rowed matrix (demography and community cohesion), and then only in the construction phase of the project. He ignored the displacement effects in the education, safety, accessibility and services/amenities rows of his table 6.2. He admitted that when assessing the ‘operation’ phase of the development, the continued effect on the existing community had not been factored in at all. He explained that this was because they would ‘not be there anymore’, albeit that he accepted in xx that the protected tenants on site would be there and would continue to be adversely affected by the severance and disconnection from the rest of the community that had been required to leave.
Mr Sheppard rightly accepted that the estate represents a strong, vibrant, inclusive and healthy community of the type that both development plan policy (Core Strategy paras 1.2, 1.8, 1.14, 2.1 and 2.30) and national policy (NPPF paras 8(b) and 91) support and aspire to. He accepted that the destruction of the existing community would be clearly contrary to those policy aims. When assessing the proposed development against the policy, his only caveat was his repeated refrain that it is not the planning permission for this scheme that would cause these effects. This point is dealt with below.

The effect on the significance of a locally significant heritage asset

There is no dispute that the existing estate on the appeal site constitutes a non- designated heritage asset of local significance. It is an irreplaceable resource within the terms of para 184 of the NPPF and should be conserved in a manner appropriate to its significance so that it can be enjoyed for its contribution to the quality of life of existing and future generations.
It is not of only theoretical importance. It is actively appreciated, not only by the community itself who have held annual heritage days but also by ‘bus loads’ of people brought to visit by the Twentieth Century society (XC CR). This is also evidenced by the consultation responses from conservation team at the Council and the Twentieth Century Society (see CDs 6.17, 6.20, 6.21, 6.27) in addition to the representations to the application made by the Leeds Civic Society and the support from the NUM.
Dr Usher was clear that, whilst some of the heritage significance is derived from the houses’ architectural and aesthetic value, much of it is due to their historic, social and communal value, something she sets out in her proof (para 5.9 and 5.11) and clearly accepted in the RT. This is also reiterated in the conservation officer’s consultation response at CD 6.27. Dr Usher’s reservations as to the merit of retaining the houses were due to her misunderstanding of the effect of the designation under the Housing Defects Act and her repeated misconception that the houses represented a ‘danger to life’, a matter that was subsequently, and clearly, contradicted by Mr Askew in her own team.
Mr Kitchen set out extensively the associations of the estate to the Rothwell mine and the history and ethos behind the construction and laying out of the estate in the 1950s. It was built by the Coal Board and laid out to foster the community spirit in the mines and for all levels of miners; workers, officials and management to be intermingled across the site. The houses were selected to be of equal or better size than similar local authority housing and with decent gardens where people could socialise. They were never intended to be privately owned but were intended for renters, for those who could not obtain, or who did not want to become bound into, a mortgage.
Mr Kitchen was clear that the heritage value of the houses and the estate as a whole is intrinsically linked to the community who lives there. It is a living, breathing heritage asset which is preserved and enjoyed by a continued demonstration of the values that its founders intended to foster. Further, the homes were designed by a local man, Sir Edwin Airey and whilst there are other surviving examples elsewhere, it is Mr Kitchen’s unchallenged understanding that there is no other pit estate of Airey homes surviving as an affordable rented estate.
The total loss of the heritage asset and the community that lives there is in clear breach of policy P11 of the Core Strategy and would be at the highest end of the spectrum of harm under para 197 of the NPPF (both as accepted by Mr Sheppard). The recording of the asset described by Dr Usher would be an empirical record of the houses themselves but would be entirely inadequate to capture the true heritage significance of the homes. In any event, as is clear from para 199 of the NPPF, the ability to record evidence of the estate should not be a factor in deciding whether its loss should be permitted.
Finally, it is important to note that whilst the estate is a non-designated asset and therefore at the lower end of the spectrum of significance when compared to listed buildings, the harm caused by its total loss is still clearly capable of amounting to a reason to dismiss the appeal. As already stated, such harm causes the proposal to be in conflict with an important policy in the development plan (P11). Further, the appeal decisions produced by Dr Usher are examples of where development proposals have been refused due to the harm caused by the loss of a non-designated heritage asset, particularly in circumstances where, as here, the non-viability of alternatives has not been fully demonstrated.

Whether the proposal is consistent with the Development Plan

In his evidence in chief, Mr Lynch set out clearly and fairly the reasons why he considers that the appeal proposal (which includes the demolition element) is in conflict with the development plan as a whole. In doing so, Mr Lynch accepted, as he does in his proof, that the development element of the proposal complies with a significant number of development control policies. However, as Mr Sheppard accepted (xx Ms B), consistency with the development plan is not a numerical exercise. It is a matter of judgement involving consideration of what are the most important policies for the determination of the appeal. In Mr Lynch’s view, a view which SOH commends to the inquiry, the important policies are those that go to the principle of the development as opposed to those that regulate the more detailed aspects of what are proposed.
As already noted, and accepted, the appeal proposal is in clear conflict with a policy which regulates the principle of the development on this site, namely P11. Additionally, the proposal is in breach of the aims and overarching purpose of the Core Strategy set out in paragraphs 1.2, 1.8, 1.14, 2.1, 2.30 and the General Policy in so far as it causes the destruction and dissipation of this existing, strong community.
Whilst the benefits of affordable housing (policy H5) and housing generally (policy SP6) are recognised, when viewed through the prism of what is to be lost, the proposal is in conflict with the underlying purpose of these policies. It is agreed that the purpose of the provision of affordable housing is to assist those without the means to live in market housing. The estate currently provides that function, as it consists of housing at below market rents (see CD5.05 para 3.14). Its replacement with only 11 affordable houses and 59 market houses will be a loss of genuine affordable housing in conflict with the purpose underlying policy H5 (albeit the 11 is compliant with the letter of that policy). Further the demolition of 70 houses and reconstruction of 70 houses is considered only neutral in terms of compliance with the development plan policies on the provision of housing.
Finally, as accepted by Mr Sheppard and as is clear from the statement of Mr Blake produced by him, it will be 20 years before the negative carbon effects of the demolition and construction involved in the proposal will be neutralised by the positive benefits of the increased energy efficiency of the new homes. As a matter of principle, an alternative renovation scheme would achieve such positive benefits in much shorter time. This is clear from the extracts referred to by Mr Lynch in CDs 7.13 and 7.14. That alternative scheme would also be positive in terms of reducing waste when compared to what is proposed. For these reasons, the alternative would be more consistent with the aims of policy EN1. Further the alternative would positively comply with policy EN6(i) in terms of reducing construction and demolition waste.

The effect of the other considerations on the overall planning balance

The NPPF

Other material considerations plainly include policies in the NPPF that have not already been mentioned. As accepted by Mr Sheppard, the destruction of the existing community (with his caveat that it cannot be retained) would be contrary to the aims of the NPPF set out in paras 8(b) and 91. Additionally, by demolishing and removing, rather than reusing, the existing houses, the appeal proposal is contrary to para 148 of the NPPF. And again, by contrast the renovation alternative performs well against that aspect of policy.
As to the economic objective of the NPPF, the economic benefits of demolition and construction of a housing site are not denied, but these are tempered by the fact that a renovation project would equally entail investment provide employment.

The Protected Tenants

It is noted that the Appellant has a legal obligation to rehouse those households benefitting from Assured and Regulated tenancies. It is also noted and accepted in good faith that the Appellant intends to rehouse those tenants on the appeal site. However, SOH has two concerns in relation to this.
First, there is no condition or s.106 obligation that guarantees that this will happen. If, for whatever reason, the Appellant were to change its mind it could still comply with its strict legal obligations by rehousing the protected tenants across the wider area with all the additional harms that would be caused by disconnecting them further from their local support network and from each-other.
Second, the Assured tenants do not benefit from rent protection, meaning that it would be open to the Appellant to significantly increase their rent to the market level of the newly constructed homes, potentially pricing them out.

No guarantee or likelihood that the 11 affordable units will be available to the existing community.

It is noted that the Council is unable to commit now to a local lettings policy that would provide any likelihood that the existing tenants might be able to obtain an affordable home in the redevelopment.
Even if such a policy were adopted, it would only have potentially helped a small minority of those tenants.
The effect of this is that all of those residents on ASTs will be plunged into the uncertainty and difficulty of finding alternative accommodation. The long wait and emotional anxiety that this would entail was set out by Ms Bruce and she also explained the additional burden this would place on the Council. This was corroborated by Mr Tinsdale who explained clearly the difficulties faced by the Council in terms of the shortage of social housing available in the local area and the long waiting list faced by people. There is no getting away from the fact that there is a real likelihood that some or many of the current residents will face homelessness. This is distressing in the best of times but would be exacerbated in the difficult circumstances of the current pandemic.

The ‘Fallback’

There has been much said from the Appellant about a fallback position and about their assertion that it is not this planning decision that would cause all the adverse effects on the community. According to the Appellant’s case those adverse effects would also occur if the appeal were dismissed because the Appellant has the legal right to evict the community from their homes (save for the protected tenants) in any event. This is on the basis of an argument that the Dyson report indicates that the houses will become structurally unstable in the relatively short term depending on the RAG classification in the report. As explained at the RT, those timescales are not fully understood or accepted by SOH and Mr Askew was unable to explain precisely how the judgements had been reached.
In any event, it is SOH’s clear case to this Inquiry that there is an alternative to evicting the residents and demolishing the homes: they can instead be sustainably repaired whilst the residents remain in situ.
As Mr Sheppard fairly accepted, the commercial decision not to refurbish the properties was taken by Pemberstone in the absence of any advice as to the practicality and viability of a Structherm^[4] type solution.
It was agreed by Mr Askew (at the RT – see also MA para 3.8) that such a system would halt the deterioration of the external^[5] structural columns (by protecting them from the elements); it would provide a degree of horizontal/lateral structural stability and it would provide upgraded insulation and thermal energy saving benefits.
It was also agreed between Mr Askew and Mr Rogers/Mr Lawton that the Structtherm solution can only be undertaken following a structural survey to determine what repairs to the pre-cast columns may be necessary. Because of the lateral stability provided by Structtherm itself and the benefit of an element of redundancy in the number of columns this would need to be assessed by a new survey. However, Mr Rogers made clear that Westdale had never come across any Airey homes where the Structherm system could not be applied following such repairs to the columns.
Mr Akew has not himself inspected the structural columns and the Dyson report simply does not comment on the Structherm system. The Dyson report proposes an entirely different repair solution which entails the full removal of all the concrete columns and their replacement with blockwork, in Mr Askew’s words at the RT “effectively a conversion to a traditionally constructed structure”. Dyson has simply not assessed, and does not conclude, as to whether the current condition of the properties would allow for the Structherm system to work, nor as to the extent of the repairs that would be necessary to facilitate such a system. As Mr Lawton said the repairs to the columns can range from replacement or partial replacement of one or more columns to simple sand/cement or resin based repairs of some of the columns.
Mr Lawton and Mr Rogers were clear that the repairs had never involved the need for occupants to vacate their homes. Whilst they often did not come onto site until after such repairs had been undertaken, Mr Rogers considered that if residents had been required to vacate they would have remained absent until the conclusion of all the works and so he would have known. In their experience, the residents had always remained in situ in all the projects they had been involved in. Similarly, Mr Tinsdale confirmed that the Council had undertaken similar enveloping renovations to over 1,000 properties and had never had to require tenants to vacate during the works.
In any event, if the Appellant preferred to require tenants to vacate during the works, as suggested by Mr Tinsdale, it would be open for them to renovate the 14 vacant properties first and use these to accommodate the residents on a rolling basis while their own homes were worked on. This would have the benefit of keeping the residents on the estate and keeping the rental income for Pemberstone. Indeed, Mr Sheppard volunteered that Pemberstone were open to using the 14 empty properties in a similar way to extend the period for which the existing residents may stay on the estate. The Appellant offered no practical reason as to why they could not be used on a rolling basis in the way suggested by Mr Tinsdale.
Mr Sheppard says that the Appellant just simply will not undertake refurbishment or repair, even if planning permission is not granted for the redevelopment. And it is correct that the Pemberstone letter (at MS Appx 6) states that ‘after taking extensive advice this is not a commercially acceptable option for us to pursue’. It also says that ‘we have been advised that such a process would result in the need to obtain vacant possession of the houses’.
That letter from Pemberstone was written on 3rd September 2020, before the exchange of proofs of evidence. No witness from Pemberstone has been called to give direct evidence about their intentions. Whilst Mr Sheppard has apparently received an update from Mr Mondon confirming a continued intention not to countenance refurbishment, that update is given plainly against the background that such a stated intention would assist in the Appellant’s case to obtain planning permission.
Pemberstone has simply not received any detailed advice as to the extent of the structural repair necessary to support the Structtherm system. It has not received any financial analysis or breakdown from Mr Wells or anyone else as to the cost per house of undertaking such a refurbishment, nor as to the extent to which rents would need to rise to recoup such cost, nor as to the extent to which any such rise in rents might be affordable by the current tenants, taking into account any energy saving costs that are likely to result from the ‘thermal’ element of the benefits (accepted in principle by Mr Sheppard).
Furthermore, in the event that the appeal were dismissed, Mr Sheppard agreed that Pemberstone would be facing a different choice. Rather than comparing a refurbishment scheme with the more lucrative and profitable redevelopment, it would be comparing refurbishment with ad-hoc piecemeal replacement or with waiting until the houses fall down (see last para of Mr Sheppard’s appendix 6). Armed with yet to be obtained structural advice and viability analysis specifically on the Structherm scheme it simply cannot be known what option Pemberstone would take.
Whilst, as I say, there would need to be an entirely different comparison (i.e not with the lucrative redevelopment option) that would need to be re undertaken from scratch, it is worth noting that the viability sensitivity testing (arithmetically agreed by Mr Wells) demonstrates the general scope in the numbers when different profit margins are considered. Further, Mr Wells agreed that he did not doubt that Mr Rogers could undertake the internal improvements for significantly less than the figures he had quoted. Also, it would be necessary to factor in the lower VAT charge of 5% for the Structherm scheme.
In relation to this, there is also the fact that ‘option 4’ has not been fully explored. The offer to 27 housing associations/registered providers was made only on the basis of a full redevelopment and an offer of the 11 proposed affordable homes. No open offer was made to the 27 to purchase or renovate the whole site. Additionally, there are an additional 3 housing associations/registered providers who are identified in the s.106 agreement and who have not been approached. Finally, on this point, there is scant evidence that the Council would not be prepared to buy the site in circumstances where planning permission were refused and the hope value thus reduced. As accepted by Mr Sheppard, the letter relied on by the Appellants gives no firm indication of the Council’s intentions in this regard. And he fairly accepted that the viability factors that would be considered by a housing association/registered provider or the Council would be different from those considered by Pemberstone when assessing the refurbishment option.
For all these reasons, the alternative to demolition is a realistic option which has not been fully explored by Pemberstone and which has not been proven to be either unfeasible or unviable. Detailed evidence of the Structherm system has been provided and there are real prospects for it to avoid all the significant harms that the appeal proposal would cause. In these circumstances there can be no justification for the destruction of an irreplaceable heritage asset or for the destruction of this valued community and all the distress that be entailed. The appeal should be dismissed.

Closing Submissions on behalf of Leeds City Council ('The LPA')

Abbreviations

GT: Gerard Tinsdale, Head of Housing Support, Leeds City Council
JB: John Brooks, Director of the Planning Consultancy team at WSP
MT: Mark Teasdale, Senior Director at Temple Group
PSED: the Public Sector Equality Duty

Introduction

This appeal relates to the application made by Pemberstone (Oulton Properties) Ltd (“the Appellant”) for full planning permission from Leeds City Council (“LCC”) for the demolition of existing dwellings and erection of 70 dwellings including associated infrastructure (LPA reference: 17/06933/FU) at Sugar Hill Close, Oulton.
The Site is currently occupied by existing dwellings let by the Appellant on the open market. There are 11 homes tenanted by those with protected tenancy agreements (Regulated and Assured tenancies). There are 45 homes let on short term tenancy agreements. There are 14 homes which are currently vacant. One further home will be vacant in November.

Reasons for Refusal

The LPA defends one reason for refusal:
Given the particular circumstances of this application, and having specific regard to the Public Sector Equality Duty, it is considered that the adverse impacts of granting permission, namely the potential and disproportionate harm that would result to the existing local community, particularly to those with protected characteristics relating to age and disability, through the loss of their existing homes and the dissipation of the community, would significantly and demonstrably outweigh the benefits associated with the development contrary to the General Policy of the Core Strategy (as amended by the Core Strategy Selective Review 2019) and paragraphs 8(b), 9 and 91(a) of the National Planning Policy Framework (February 2019) which are material considerations that outweigh the Local Plan.

The Case for the LPA

The LPA entirely acknowledges the specific and unusual circumstances of this case or, as the reason for refusal states “the particular circumstances of this application”. The LPA gives determinative weight to the dissipation of this existing community through the loss of their current homes. The community is cohesive and culturally valuable.
4. There will be a significant impact on people with protected characteristics. The loss of community and culture is something the planning system should seek to prevent. This unique irreplaceable loss stands in contrast to the generic benefits of the proposed housing appeal scheme. Put simply: to refuse planning permission is to preserve something special. To grant planning permission is to approve an entirely ordinary housing scheme. It should of course be noted that the appeal proposal is replacement housing.
5. Essentially the Appellant and LPA are apart regarding the correct starting point for this appeal (JB Re-Ex). For the Appellant it is commercial considerations; for the LPA the community is the focus of this appeal because it is the special and irreplaceable element at the centre of the debate over the merits of the scheme.

Structure of the Existing Houses

The LPA accept the findings within the Dyson report. It is noted that two properties are identified as having ‘green status’ within the report. It is accepted that there are problems with the structure of the existing houses and that some form of action must be taken in relation to the existing houses. It is observed that there are 14 vacant properties (soon to be 15) and MS in EIC observed that these could be made available to existing residents to prolong their time on the estate. The houses are not currently a danger to life and the level and urgency of intervention required varies from property to property.

Is the appeal proposal in compliance with the Development Plan?

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that planning applications are determined in accordance with the Development Plan unless material considerations indicate otherwise.
The LPA submits that the appeal proposal is not in accordance with the development plan because of conflict with the General Policy.
The eminently straightforward evidence of JB acknowledged that his planning evidence was unusual. He accepted that his approach did not follow precedent established in other planning cases. He was, however, clear: his evidence is that the social impact of the proposed development is so significant that the appeal proposal does not progress beyond the general policy.
Paragraph 3.4, which precedes, the General Policy advises: “To ensure that the positive sustainability aspects of the National Planning Policy Framework are embodied into this plan, the following policy will be relevant to all development proposals”. The clear advice in the explanatory text is that the General Policy applies to all planning applications as a means to ensuring sustainable development.
In Re-Ex JB observed that the General Policy applies both to the Applicant and to Leeds City Council as planning authority. The two obligations in the General Policy to “find solutions” and to “secure development that improves the economic, social and environmental conditions of Leeds” apply jointly to the Council and to developers.
JB’s evidence was that in this highly unusual case the appeal proposal complies with 28 of 29 relevant policies but, as it fails to accord with the General Policy, it fails at the first hurdle (JB EIC). He accepts that there is compliance with development management policies but considers that there is such significant impact to the community through the loss of homes, community and culture that there is a failure to comply with the development plan as a whole (JB EIC).
In XX JB was adamant that his planning judgement is that he applies determinative weight to the breach of the social element of the General Policy. He explained “I have not come across a case like this before and in my opinion the weight I give to the social strand of sustainable is absolutely justified. It may be unusual to do so because the social strand is the least understood, but I feel very strongly it justifies that much weight.”
MS in XX confirmed that the question of compliance with the development plan is not an exercise in arithmetic or counting policies for and against the proposal. It is a question of overall judgment, and as such different professionals may reach views. The General Policy is a “fundamental policy”.

Harm to the Local Community

The LPA submits that the proposed development would result in significant and demonstrable harm to the existing community. It is likely that the majority of residents would be displaced and as such that the community would be dissipated.

What is the local community?

JB in answer to IQs advised: “It is a particularly strong coherent local community. It has not sat back and just allowed this to come forward, they’ve fought hard against it, it is their homes they are fighting for. Many people have lived there for years. This adds to fact it is their homes, they value the community. Oddly one of the things that has happened in pandemic is community has come closer together, integrated more, bought food for each other. Very well-established community with unique a culture that goes back to mining industry. In my opinion it should be valued, far more than it seems to be by the Appellant. I’ve only had limited interaction with the community, but I’ve spoken to Cindy Readman and John Lynch and relied on MT’s evidence. It is a special long-established community.”
In terms of the extent of the community JB advised (also in IQs): “It is within the red line of the application, but I see that it extends beyond the red line... There is almost a series of fingers, the way in which children go to the local school, the way in which they use the use recreational centre and the way in which they use the local pub. There will be people who visit from outside regularly. It [the community] is not defined by a red line on a plan.”
In terms of the structure of the existing community, MT’s Supplementary Note establishes that there are 68 residents within 36 properties who have protected characteristics (MT SN, p.1, note under ‘Table 6’) and that 57 of these residents within 29 households would not be rehoused as protected tenancies (i.e. these 29 households are AST households).
MT’s evidence established that the community is predominantly made up of long-term residents with numerous households living on the site for over a decade (see MT PoE Table 7; MT PoE [1.59]- [1.60]) and that many residents socialise, work, worship and undertake recreational activity locally (MT PoE [1.48], [1.49]). The community relies on social infrastructure, like local schools and the local GP surgery and is heavily reliant on public transport (MT PoE at [1.63]- [1.66]). CR spoke eloquently about the relationships and networks in the community.
Community events at the Oulton and Woodlesford Sports and Social Club are organised and “are facilitated by the sense of connectedness fostered through the use of a dedicated Facebook group” (MT PoE [1.49], [1.50]). This dedicated Facebook group acts as a neighbourhood watch organisation and has organised assistance for vulnerable residents shielding because of Covid-19 (MT PoE [1.50]; MT PoE Appx 4). The group has some 688 members (MT PoE [1.51]).
In addition to the Facebook group, further evidence of the community’s cohesion and identity is found in the “#SaveOurHomesLs26” webpage and Twitter account (MT PoE at [1.53] and [1.54]; MT PoE Appx 5 & 6). In addition to the social media presence the group has been visible in local and national press and has established a crowdfunding initiative to fund their appeal (MT PoE [1.55]).
MT advises that community spirit has previously resulted in numerous social gatherings and street parties (MT PoE at [1.72]).
The community is relatively secluded from the rest of Oulton which serves to reinforce its self-sufficiency (MT PoE [1.52]) and, it is submitted, its unique culture and identity. Evidence of the community’s self-sufficiency is found at Table 8 (MT PoE at [1.61]- [1.62]), in the form of evidence regarding caring arrangements on site. Organised care is supplemented by a range of informal support (MT PoE at [1.62]). Examples of how residents have assisted one another in the Covid-19 pandemic include: caring for domestic pets of key workers, shopping and collecting prescriptions for the elderly/vulnerable (MT PoE at [1.74]). CR provided further (unchallenged) insight into the community’s nature and cohesion.
The Appellant could have called evidence to examine the makeup, value and nature of this community but chose not to do so. MT’s evidence is therefore the only evidence before the inquiry on this issue (MS XX).

Loss of Culture

The Leeds City Council Culture Strategy 2017-30 defines culture in the following terms:
“Culture is what we do and who we are, encompassing a broad range of actions and activities which have the capacity to transform, challenge, reassure and inspire, giving a place and its people a unique and distinctive identity.”
MT observes that “based on this definition, it is evident that there is a strong culture throughout the Appeal site” (MT PoE at [1.89]) and “the sense of a distinctive identity referred to in the Leeds definition is also noteworthy relative to the Appeal site given the coordinated mobilisation of the local residents to appeal the planning decision” (MT PoE at [1.90]).
Mr Kitchen spoke eloquently about the pit estate culture in the heritage round table. He explained how the intention was to make housing available to those who did not want or could not afford a mortgage and to foster a strong sense of community, replicating the community spirit found in the pits themselves.
JB observed that there was continuity in relation to this unique culture. In answer to IQs he commented: “Given the comments by Mr Kitchen in the round table, it [the community] serves the purpose it was established for and provides low cost accommodation for families. This is of significant value.”
It is submitted that the appeal site is a place and people with a unique and distinctive identity and that the planning system should value this special culture and seek to prevent its loss.
MS’s evidence did not address the loss of culture or weight this material consideration in the planning balance.

Dissipation of the Community

MT advises that there is a “strong and enduring sense of community cohesion at the Appeal site. This is a long standing and close-knit local community in which people rely heavily on one another for support, companionship and collective identity” (MT PoE at [1.75]).
The Appellant has been keen to stress areas in which the LPA have not called evidence. However, noticeable in absence is any attempt by the Appellant to call evidence addressing the unique nature of this community and its psycho-social value. MT is the only social scientist witness who places evidence before this inquiry regarding its structure, identity, cohesion and value. MT’s unchallenged evidence regarding the nature of this community is as follows (PoE at [1.100]):
“During a professional career in regeneration spanning three decades I have worked with a wide range of local communities across the UK. I do not recall coming across a group of local residents with such a strong and cohesive sense of community as the families living at the Appeal site. These are ordinary, hard-working people who together have created something very special indeed. This is an extraordinary local community which would be permanently diminished if the proposed development were to proceed”.
MT opines “In an increasingly digitalised society, the interpersonal relationships fostered at the Appeal site, particularly during challenging times such as the COVID-19 pandemic, are of crucial importance. This sense of belonging and celebration is something that cannot simply be replicated in a new development and would therefore be completely lost in its current state if the decision for refusal was not upheld” (at MT PoE [1.89]). The loss of something irreplaceable is a unique and compelling feature of this case.
JB in EIC gave evidence regarding the nature of the planning system and whether dissipation of the community is a matter with which it can be concerned: “the planning system is a system which allows a whole variety of different matters be taken into account. Pemberstone’s argument talks about the need for commercial returns. I understand that but the planning system doesn’t have to comply with Pemberstone’s financial requirements. It is a sophisticated system that allows weight be given to social matters. Here the social matters are so significant that they warrant dismissal [of the appeal]”.

Loss of Homes

It is submitted that in light of the strength of evidence regarding the community identity at the appeal site ‘home’ rather than ‘house’ is the correct word. What stands to be lost if permission is granted are homes and family and private lives built within those homes.
Whilst the LPA accepts that the existing homes are not affordable within the NPPF definition (JB EIC) the homes are genuinely affordable in the plain English or laymen sense of ‘affordable’. Whilst there the appeal proposal would provide an increase in NPPF definition affordable homes the evidence from CR is that residents are likely to be homeless and increase demand on Council services.
MT’s evidence compares rental prices within the local area (MT PoE at [1.68]- [1.70]; Appendix 7). The comparative exercise undertaken by MT demonstrates that there is a very limited supply of comparable properties in the area (2- or 3-bedroom houses with gardens). Properties that are available to rent in the private housing market would be much more expensive. The evidence of GT (EIC) explained how the current housing situation means that there are likely to be considerable challenges in re- housing the tenants in the same area. GT (EIC) explained how the pandemic has placed additional pressures on the social housing system and how an Emergency Lettings Policy now runs in parallel with the standard lettings policy. Any Local Lettings policy ultimately adopted (and there is no guarantee that LCC’s housing Department would adopt such a policy) could not ‘guarantee’ priority to existing residents, the ultimate assessment would have to be made on a case by case needs-driven basis. If the Emergency Lettings Policy remains in force at the relevant time, it is likely that those vulnerable to Covid will be prioritised making it even less clear that the new affordable houses would be occupied by households from the existing community.
For the reasons given at the s106/ conditions round table, the Council cannot agree to a Local Lettings Policy by way of s.106 Agreement. Part 6 of the Housing Act 1996 (‘the 1996 Act’) governs the allocation of housing accommodation by local housing authorities. By virtue of 166A(1) every housing authority in England must have an allocation scheme for determining priorities, and as to the procedure to be followed, in allocating housing accommodation. Housing shall not be allocated by a local housing authority except in accordance with their allocation scheme (s.166A(14)). Section 166A(6)(b) of the 1996 Act enables housing authorities to allocate, by way of allocation scheme, particular accommodation to people of a particular description, whether or not they fall within the reasonable preference categories, provided that overall the authority is able to demonstrate compliance with the requirements of s.166A(3). This is the statutory basis for ‘local lettings policies’.
The difficulty in the present case is that in the absence of confirmation regarding which RP is to be responsible for the affordable units there can be no consultation exercise under s.166A(13). There are no nomination agreements under s.159(4) and so it is not possible to consult with any party or to give the relevant party time to make reasonable comment.
Further, the Council cannot lawfully commit to a Local Lettings Policy without carrying out consultation: this is required by the Council’s Local Letting policy. The adoption of such a policy would have to be an evidenced-based and accord with the procedure established by the Housing Team’s policy which requires consultation.
For clarity, this does not mean that there is a ‘shut door’ on the option of a Local Lettings Policy, it means that this cannot be achieved now by way of S.106. the matter can be revisited once an RP has been identified for the affordable units. It should be noted that whilst a Local Lettings Policy can prioritise local people it cannot guarantee that all houses will ultimately be occupied by local people.
In any event, the number of affordable houses to be provided under the appeal proposal exceeds the number of AST households (29) who self-define as having protected characteristics (MT SN, p.1, note under ‘Table 6’).
For all of these reasons it is clear that harm arises from the loss of these homes.
Article 8 of the ECHR provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2._There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
To grant planning permission for this development would be to interfere with the tenants’ article 8 rights. The tenants have made their homes in the existing houses and it would be an interference with their article 8 rights to require them to move in order to build out the appeal proposal. These rights demand respect, are important and are a material consideration in the planning balance^[6]. The interference has to be balanced with all other material considerations in an overall planning judgment^[7]. It follows from the LPA’s emphasis on the importance of community and of not dissipating community that the LPA submits that the article 8 rights of tenants are a material consideration of considerable weight in the planning balance.
The LPA does not accept that the private interests and private rights of AST tenants with no protected characteristics are not material to the case. On the contrary, where article 8 rights are engaged in a planning context, they are a material consideration and any interference has to be balanced with and against all other material considerations to assess the justification of any interference.

Best Interests of the Child

There are 39 children living on the appeal site. Where the article 8 rights in issue are those of children, they must be seen in the context of article 3 of the UNRC, which requires a child’s best interests to be a primary consideration.^[8] This requires a decision maker to identify what the child’s best interests are^[9]. In a planning context the child’s best interests are likely to be consistent with those of his parent or other carer who is involved with the planning process. Unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests and can properly represent and evidence the potential adverse impact of any decision upon that child's best interests^[10].
It is submitted that the best interests of the children in this case are represented by their parents (see [iii] above) and that it is clear, from the letters of objection and the position of Save Our Homes, that parents and carers on the Site are opposed to this appeal proposal. MT and JB (in EIC) both considered the impacts of granting planning permission on the children on the Site and concluded that it was in the best interests of the children present on the Site to remain living at the appeal site within the established community if possible. MT in his PoE examines the temporary and permanent effects of granting planning permission on children.
No other consideration must be regarded as more important or given greater weight than the best interests of any child. The best interests of any child must be kept at the forefront of the decision-maker's mind as he examines all material considerations and performs the overall exercise of planning judgment^[11]. The decision-maker must assess whether the adverse impact of his decision on the interests of a child is proportionate^[12]. The best interests of the children on the Site are central to the proper determination of the issues at this inquiry. Accordingly, a consideration of the best interests of the children on the Site weighs heavily against the appeal proposal in the overall planning balance.
This fundamental point has been overlooked by the Appellant. It is a glaring omission from the Appellant’s planning case.
Considerations under the Public Sector Equality Duty
The equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
The decision maker must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision^[13]. The duty must be "exercised in substance, with rigour, and with an open mind": it is not a question of "ticking boxes"^[14]. The duty is continuing and requires specific regard, general regard will not suffice.
It is common ground that the Inspector now has enough information before him to fulfil the exercise required by the PSED and have the required “due regard”.
For this appeal a fresh assessment of equality impacts was undertaken by MT which identified six temporary adverse effects and nine permanent adverse effects on residents with protected characteristics and on the wider community. MT’s judgment is that granting permission for the appeal proposal would have detrimental impacts on both mental health and social wellbeing for a considerable number of residents but particularly those with protected characteristics. A particular point of concern is the vulnerability of those with protected characteristics to stress and anxiety and loneliness caused by community dissipation and the loss of homes.
In XX AB’s explanation of his table 6.2 was deeply unsatisfactory. He inserted rows that seemed to serve no purpose other than to confirm that something not proposed was not going to happen (the destruction of education facilities). AB advised that matters which were plainly relevant featured in the “demography” row but there was no reference to loss of informal services or education disruption in that description next to that box nor were ‘children’ identified as a sensitive group.
There is no consideration of existing residents in the construction phase identified in AB’s table 6.2: they simply “fall of the balance sheet”.
AB’s approach stands in contrast to MT’s approach. MT identified permanent and adverse effects on residents including those with protected characteristics and identified the impacts on those people with precision.
In XX AB accepted that ‘health’ was in fact a neutral matter for the purposes of the starting point. in his EIC Mr Teasdale commented that the ASTs could in fact be seen as performing a positive equalities function in that they have made housing available to a group to whom spacious detached homes with gardens would not ordinarily be available (as his Appendix 7 housing availability search indicates). The negative impacts of having unsellable, unmortgageable properties is felt by the Appellant and not by the existing community who want to be in these homes. In XX Dr Buroni agreed that the existing homes were not adversely impacting on people’s health at present. He agreed that at present health is a ‘neutral’ matter. AB is therefore quite incorrect in his assessment that the existing site is giving rise to inequalities owing to insecurity of tenure and health burdens.
AB also fails to appreciate that the residents consider that the existing homes are meeting their needs. The residents, many of whom have protected characteristics, are entirely able to discern what is in their interests and whether the houses are meeting their needs.
Whilst AB referred to the options for ‘decanting’ via the phasing process it must be note that no settled phasing plans are before this inquiry, these matters stand to be confirmed by way of condition.

The Fallback

The LPA accepts, as a matter of housing law, that it is open to the Appellant to serve notice on the AST tenants to end their tenancy agreements^[15]. This can be done on a ‘no fault’ basis. The current notice period is 6 months, due to the pandemic^[16]. It would ordinarily be much shorter: 2 months.
The residents have given evidence to the inquiry about the likely consequences if planning permission is granted. Mr Tinsdale has explained what the LPA could do to assist. The Appellant has pursued a corporate strategy of obtaining planning permission and then moving to evict residents before demolishing houses and building the new development. Distinguishing between seeking planning permission and evicting the tenants is a false dichotomy: there is one decision in issue, the decision to pursue the strategy described. The uncertainty regarding the residents’ position flows from the planning intentions regarding the appeal site. It is possible to live in a property for years on the basis of an AST (as the AST data provided by the Appellant establishes).
The question of whether something is a fallback for the purposes of planning law is, it is submitted, a mixed question of fact and law. The question is whether there is a “real prospect” which is a matter of planning judgment. It cannot be a “merely theoretical” option. The planning judgment is a matter of broad discretion.
It is submitted that companies, particularly when operating in an intensely political climate which is subject to media scrutiny from both conventional and social media, are motivated by reputational as well as financial concerns. It is submitted that it is very unlikely that a company with a national presence would want to evict a community containing so many people with protected characteristics: the elderly, children, young families in the midst of a global health crisis in an area currently under Tier 2 lockdown. To take this course of action is to risk severe reputational damage and condemnation.
It is highly material that Pemberstone have not put any material before the Inquiry which states that they intend to evict all of the residents if planning permission is granted. It would be very easy indeed to produce a letter confirming this intention.
The best evidence before the inquiry of how this Appellant might behave were planning permission refused is the letter at MS Appx 6, a letter from Peter Mondon, Project Manager at Pemberstone to Matthew Shepherd [sic] (dated 03 Sept 2020). The letter makes no reference to a plan to evict all residents if planning permission is refused. It makes no reference to the position in housing law whatsoever. In fact, in the last paragraph, the letter advises that if there is no planning permission in place Pemberstone will have to wait until the houses fall down or “make small ad hoc planning applications on a piecemeal basis”. As JB observed in EIC the ‘ad hoc planning permission’ approach is a solution that Pemberstone themselves have raised. This approach would ensure that the community stays together. The letter also describes Pemberstone acting otherwise than in their direct commercial interest but instead electing not to evict residents, seek possession or increase rents. Of particular note is the offer to make vacant properties on site available for as long as possible and to extend the leases of all AST tenants to January 2021. As JB observed in EIC Pemberstone have chosen to take this proposition down the planning route, rather than to seek possession via the housing act. It is plausible that if the appeal were dismissed, Pemberstone would rethink the options and could perhaps go down the route of working more with the community to consider the incremental planning permission approach described (JB EIC).
In any event, what is absent from the letter is the information necessary to make good the fallback argument: a concrete intention to evict all residents if planning permission is not granted.
The planning system exists to consider and control land use planning matters and not to meet the financial requirements of a private sector organisation. For this reason, when the social implications of a proposed land use are so great, the fallback position does not have determinative weight in the planning balance, as JB explained in XX.
There is a legal reason why the fallback position cannot have the weight attributed to it by MS: no other consideration must be regarded as more important or given greater weight than the best interests of any child (see [49] above).

The Refurbishment Option

This is not a case where there is no conflict with policy or other planning harm (R (Mount Cook Land Ltd) v Westminter CC [2003] EWCA 1346 at para 30(4)), accordingly alternative schemes should be considered.
MT in Re-Ex commented on the option placed before the inquiry by GT: whereby the 14 vacant properties are refurbished and then used to phase the development so that the community can remain in situ. He noted that this would not give rise to the harms associated with permanent community dissipation. JB in EIC described “a decanting process”, observing that the benefit of such a system would be that, with minimal disruption, there would be a “marvellous way” to retain the community in place.
In XX GT made reference to the fact that LCC had enveloped over 1000 properties and GT suggested that residents had remained in situ. Structherm advised the inquiry that they had not yet encountered an Airey property that could not be treated with Structherm and that in their experience residents also remained in situ.
JW’s sensitivity calculation (CD 05.33 & CD05.32) suggests that it is possible to achieve an acceptable level of profit (whether 15% or 16.3%) relying on a repair/ refurbishment approach.
In the structural roundtable, Structherm confirmed that the comprehensive upgrading of all structural columns was not needed to ensure their product worked. JW’s note observes that a 15% return could be realised if the Structherm refurbishment option was pursued. Although this solution is currently not mortgageable, it would allow a return on revenue for a c.30-year period. Mr Tinsdale confirmed that housing grant or universal credit could be used to ‘top up’ increased rents resulting from such work. This is an option open to Pemberstone.
The observations regarding the refurbishment option by the Rule 6 party are endorsed. The fundamental point is that there is an alternative scheme before this inquiry.

The Planning Balance

The LPA acknowledges that the appeal proposal has benefits (JB XX). JB has grouped the benefits into three groups: economic, social and environmental. He gives these matters weight but contrasts the generic nature of such benefits with the very unique and specific harm that will arise causing irreparable destruction to culture and community. The benefits are common to any housing scheme and are all, it is submitted, entirely unremarkable.
JB has also considered paragraphs 8, 9 and 91 of the NPPF. JB’s evidence is that there is conflict with the social objective in para. 8(b) and, in particular, the appeal proposal does not meet the needs of the present generation. JB observes that it “will take 10 or 20 years to even begin to create the community that currently exists”. In terms of para.9 NPPF JB’s evidence (JB XX) is that the appeal proposal is the “antithesis of a sustainable solution” because it is “destroying a community in the process”. With respect to para.91 NPPF, the appeal proposal is not achieving a healthy, inclusive and safe place because of the destruction it will cause prior to the development coming forward (JB XX). To interpret the NPPF otherwise than in a manner which protects, and values community would be peculiar (JB XX). The NPPF is future looking in the sense of being aspirational rather than being only concerned with matters in the future.
The harm in this case flows from the appeal proposal which is a strategy: obtain planning permission, evict residents, demolish existing homes and build the development (it is accepted these last two stages are subject to phasing). There is no act more final than demolition and here it is the demolition which removes the house and is the ultimate infringement, indeed curtailment of, Article 8 rights. It is artificial therefore to suggest that all the harm arises from the condition of the homes or from the ASTs.
JB’s overall, considered view was that the harm to the community from dissipation and loss of homes was the determinative issue in the planning balance.

Conclusion

The NPPF advises that “the purpose of the planning system is to contribute to the achievement of sustainable development” (at [7]) and that “achieving sustainable development means that the planning system has three overarching objectives, which are interdependent and need to be pursued in mutually supportive ways” (at [8]). The social objective of sustainable development requires action to support communities’ social, health and cultural well-being. This appeal proposal is not sustainable development.
This appeal proposal is not in accordance with the development plan. This appeal proposal will give rise to unique harms: the loss of an irreplicable community. The LPA firmly submits that the overall planning balance requires that planning permission be refused.

The Closing Submissions of Pemberstone

Introduction

The harm to the community.

Unquestionably this is a difficult case because of the consequences for real people who occupy these houses currently.
The Appellant has understanding and empathy for the occupiers and that has been reflected throughout by their actions, not words, which have resulted in continued occupation now and a commitment to allow them to remain for as long as possible.
Much has been made of the community and how special it is. You will need to reach a judgment on that but it is important to note:
4.1. There are only 70 houses in total.
4.2. Within the coming month 15 will be vacant.
4.3. Therefore only 55 will soon be occupied – 44 AST and 11 R/A tenancies.
4.4. Of the 44 AST the clear evidence is that 19 have moved in post the submission of the planning application (1 of these is the tenant who has recently given notice).
4.5. Consequently only 36 houses are occupied by the current residents for longer than 3 years.
4.6. Only 22 of the AST households have self-identified as having protected characteristics. [Final Buroni/Teasdale table]
4.7. As Leeds Officers said in October 2019, not us – “This is a community that was felt to be transitory in nature”.

The need for action is imminent

It is agreed by all parties that there is a need for action in relation to this site in the short term.
That need however is imminent. Dyson reached the informed view in April 2020 that 15 properties had to have structural intervention by April 2021 [only 6 months away], 53 properties need structural intervention by April 2022 [only 18 months away] and only 2 properties only require bi-annual structural surveys.
Therefore there is a huge ticking time bomb on these properties – 68 or 97% must have structural intervention by April 2022.
That considered, objective view has not been challenged by anyone who has any professional credentials to do so. Indeed Leeds accept it wholeheartedly and unreservedly.
One of the biggest mysteries to this inquiry which we have not have any explanation for is why neither Leeds or SOH have sought any professional advice to contradict that based on the cases they have sought to run.
In the absence of that evidence their cases are hugely emotive and understandable but utterly academic and hypothetical because no one has or can challenge that conclusion.
It is worth re-iterating because of its huge importance and consequence on everything that follows – 97% of these properties must, [not could, might, maybe, hopefully, but must] have comprehensive and complete structural intervention by April 2022.
That view is endorsed by Marc Askew of Walker Ingram who is also a structural engineer.
Therefore there are 2 structural engineering firms who endorse that view.
There is no one else with a jot of professional qualification who puts a counter view forward at this inquiry and everything that follows must be influenced by that.
Therefore the views of SOH and the residents that they only face eviction if planning permission is granted, whilst completely understandable are completely and utterly wrong.
In any scenario these properties need to be vacated by their inhabitants.

The options open to the Appellant

There are 4 options before the Appellant which appears to be common ground.
The evidence at this inquiry has shown that Option 1 can be discounted. All parties agree do nothing is not an approach that can be countenanced now or in the future in the light of the structural state of the houses.
Option 4 (Sell) is not seriously contended by the LPA: Mr Brooks confirmed this in cross- examination.
Ms Wigley sought to give it some legs yesterday in cross-examination of Mr Sheppard, but the evidence is overwhelming that 27 RPs and the City Council have shown over 3 years no interest in acquiring the properties.
It is also noteworthy that SOH have not written one letter to any party seeking the acquisition of the interest in 3 years. Additionally, why would anyone consider acquiring a huge liability. The minimum capital expense with just the Rogers/Lawton solution would be £2.8 million!
Therefore, the only real options for you to consider are between Option 2 (re-furbish) and Option 3 (New build).
Option 2 is simply not viable with the agreed minimum two stages – structural investigation + Structherm because any developer would want to do a “proper job” to get the necessary return to put the properties in a position where they could repay the capital spent.
That is not hoodoo viability but the most logical and understandable position of any commercial company namely before money is spent there must be reasonable certainty it can be re-couped!
Therefore, the only Option is 3, namely, the grant of planning permission bringing about new build and that has become absolutely clear with the evidence at this inquiry.
Consequently, the Appellant has behaved impeccably in this matter from start to finish.
The Appellant has shown utmost restraint and consideration and yes compassion towards the occupiers of these premises. It had the ability to take the homes back from the vast majority of the residents at 2-months’ notice prior to the pandemic and yet has not done so.
It has had to face a barrage of criticism, often highly personal, and yet stayed fair and considerate throughout.

The approach of the Appellant

We utterly reject any contention that at any stage the Appellant has not behaved reasonably and fairly in this matter. It was noteworthy how little criticism was directed to Mr Sheppard by Ms Wigley regarding Pemberstone’s approach historically and now to the residents.
All they are seeking to do is find a route which will be viable to them – a position which every single commercial organisation on this planet is required to do in duty to its investors and shareholders. Not one company ever sets out to lose money and that is even more strongly emphasised when they have the best professional advice that they will unquestionably do so.
Pemberstone is not a social housing provider.
The implementation of the planning permission sought will unquestionably have difficult and significant consequences for the majority of existing residents to this site.
However, this inquiry has shown without proper contradiction and contention that there is no alternative.
The most important requirement now is to focus on the actual evidence that has been brought before this inquiry – not hypothesis, speculation, fantasy or desires.
The simple, yet painful, truth is that there is no other option than to grant the permission sought by the Company which was endorsed by the officers after nearly 2 years of agonised consideration in the light of the strong objection raised by the residents.

The approach of the LPA

This was and is not a case about breach of PSED. The reason of refusal is just plain wrong in law and evidentially.
In law it is wrong because patently section 149 of the Equality Act 2010 is one that requires a process to be followed by having due regard to the protected characteristics of the occupiers. The LPA clearly did in the survey and the Planning Officers Report. Ironically the only party who criticised that approach was Mr Teasdale who apparently was their witness!
Then the duty falls on you and of course you cannot have a reason for refusal which alleges you have not had due regard to something before you actually have!
What is agreed is you have all the information available to reach a view.
Evidentially now therefore you have the ability, inclination and determination to have due regard to those matters and you will do so.
However the fundamental point as emphasised by Mr Buroni and Mr Teasdale (albeit inadvertently in cross-examination) is that there is no breach of Section 149. The grant of planning permission simply does not and has never distinguished between those with PC and those without.
The structural condition of the buildings is completely blind as to who occupies them and whether they have PC or not.

The approach of SOH

We have thought long and hard as to what to say about this Rule 6 party who unquestionably have put their case forward in a fair and powerful way. We will not criticise them save to say they have always focussed on the wrong target namely the Landlord rather than the real problem which is the condition of the houses.
They all unfortunately live in houses for many different reasons which are fundamentally defective as determined by Government and need replacing.
If only they could survive for another 100 years. But they cannot and that is the hard and harsh reality as stated above.

PROPOSITIONS ESTABLISHED AT THIS INQUIRY

It is the Appellant’s case that four propositions have been clearly established by the evidence at this inquiry:
46.1. The need for action in relation to the site;
46.2. The proposal is the only viable course of action;
46.3. The Appellant’s rights under landlord and tenant law; and
46.4. You can safely discharge your duties under the Equality Act 2010 and Human Rights Act 1998.

PROPOSITION 1 – THE NEED FOR ACTION

It is common ground between the Appellant and the Council that “taking no action to remedy the structural issues in these houses in not a sustainable way forward for these properties or residents”: SoCG LPA, para 7.53 [CD.5.03]. I pressed Ms Wigley regarding SOH’s position on the structural condition of the existing houses and the need for some form of intervention. At that time Ms Wigley stated that she was reserving her right to probe the results of the Michael Dyson Associates Report “the Dyson Report” [CD7.03], however accepted the likelihood that a solution – such as the Structherm solution promoted by her client – would be required in the short term.
Ms Wigley exercised her right to probe the findings of the Dyson Report during the course of the roundtable, asking Mr Askew questions regarding the RAG ratings contained in that report and the associated timescales for intervention provided. Mr Askew gave clear evidence in response to these questions that the findings of the Dyson Report were the judgments of professionals with over 40 years’ experience in surveying these types of properties. As Ms Wigley and Mr Rogers^[17] accepted, there is no other expert evidence before the inquiry to challenge Dyson’s professional judgment, supported by Mr Askew (himself an expert structural engineer). In fact, Mr Rogers confirmed that if he lived in one of these houses and was presented with the Dyson Report, he would want to fix it – regardless of the colour of the RAG rating – as it was clear that some deterioration had occurred. He also accepted, as did Mr Lawton, that they were not structural engineers.
Mr Lynch accepted in cross-examination that “do nothing” is not an option for these properties but maintained that the timescales for intervention were not proven. Nonetheless, he also rightly conceded that SOH had neither presented nor indeed sought any evidence to challenge the Dyson Report’s findings.
In sum, it is the Appellant’s case that the strong, reliable and expert evidence before the Inquiry on the structural condition of the houses very clearly demonstrates that there is an urgent need for intervention in relation to the vast majority of the existing properties on the site (excluding the two with a green RAG rating). This discounts what has been referred to during this appeal as “Option 1: Do nothing”.
It is also worth stressing that both the LPA and SOH had ample and every opportunity to get their own advice on this matter and have not done so. No other party has got a shred of professional evidence providing any challenge to Dyson who are one of the leading firms in Airey homes.
That evidence must be given compelling weight in relation to the structural state of the homes and the need for the most significant intervention.

PROPOSITION 2 – THE PROPOSAL IS THE ONLY VIABLE COURSE OF ACTION

This proposition follows from the evidence given at the structural and viability roundtables in relation to “Option 2: Refurbishment” and other evidence given during the course of the inquiry as to “Option 4: Sale of the Site”.
It is notable (again) that only the Appellant called expert evidence on structure or viability and that the Council’s witnesses who were present contributed very little, if anything, to the discussion despite multiple opportunities to do so.

The structural feasibility of refurbishment

The structural roundtable began with a consideration of the design of the Airey houses and the reason for their being designated as defective (see Appendix 1 for further detail on the legal aspects of this designation). Mr Askew explained how, due to the very limited concrete cover, exposure at the base, and the presence of water resulting from a lack of any water tight seal in the ship lap panels to the façade, the steel within the precast posts, which are integral to the structure of the property, are susceptible to corrosion. Similar defects occur in the internal posts as a result of humidity (e.g. from the bathroom and kitchens) penetrating the porous concrete of the posts.
The discussion then turned to consider refurbishment options. Mr Askew set out the full refurbishment option proposed by the Dyson Report, entailing a full removal of all precast concrete columns and replacement with blockwork, effectively converting the houses from prefab to traditional construction. He gave a timescale for such work of 6-8 weeks. He accepted that, if money were no object, this would be a feasible solution to the structural issues in the properties. However, he also gave his very clear professional opinion that residents would absolutely not be able to remain in the properties while this work took place.
Mr Askew went on to explain his understanding of the Structherm option and why, in his professional judgment, this was not a feasible solution to the structural issues with these properties. He explained how that system could add a degree of structural support in terms of horizontal load bearing but would add nothing in terms of vertical load bearing. Further, he noted that the system could not address the internal columns that need addressing in the existing houses. He set out his conclusion that given the status of the existing Airey houses on this site, with internal columns that have already deteriorated in many cases, the Structherm system could not guarantee against further deterioration and ought to be ruled out as a solution.
In response to this Mr Rogers stated (and re-emphasised on several occasions) that the first step in any Structherm refurbishment option would be for a structural engineer (such as Dyson) to survey and provide a report on the properties with the Structherm solution specifically in mind. Only then would he be able to say with any certainty exactly what a Structherm refurbishment would involve for these particular properties. While insisting that they had never had to carry out a repair to the precast columns on previous refurbishment projects, he also informed the inquiry that for many of these projects (e.g. Wrexham and Rutland Water) the properties had been structurally repaired before Structherm became involved.
Turning to the costs of the Structherm system, Mr Lawton confirmed that the guide prices given at paragraph 11 of his proof [CD5.21] do not include any structural repairs that may be required, nor the cost of the structural report that would be necessary prior to any refurbishment taking place.
Finally, the life expectancy of the product of the two refurbishment options was discussed. Mr Lawton gave evidence that the Structherm system was guaranteed for 30 years and that he has examples of projects where it has lasted for longer than that (since the mid- 1980s).
However, Mr Askew pointed out an important qualification: while Structherm could guarantee its own product for 30 years, that guarantee would not apply to every other structural element within the property. That would require an inspection of each individual element by a structural engineer. Similarly, while the full refurbishment option recommended by Dyson would provide a life expectancy similar to a new build for the walls of the property, the same could not be said for the floors and roofs without inspection by a structural engineer.

The commercial viability of refurbishment

The viability roundtable began with Mr Wells setting out the basis for his assessment of the viability of a repair and renovate option as set out at paragraph 83 onwards of his proof of evidence [CD5.07]. In doing so he noted Mr Lawton’s acknowledgement in the structural roundtable that 99% of the projects carried out by Structherm have been for local authorities or housing associations. He explained how the assessment of viability for such a landlord is very different to that for a private landlord such as the Appellant who is likely to borrow the money on commercial rates from a financial institution and require a certain level of yield on the investment to be content it is a route which is commercially acceptable.
The starting point, he explained was to calculate the Existing Use Value “EUV” of the properties in their current state. It was clear from Mr Wells’ exchanges with you concerning his selection of a relativity perspective (at paragraph 73 of his proof) and a discount for the presence of statutorily protected tenants (paragraph 74) that his baseline EUV was a conservative figure, setting a lower hurdle for profit and viability than might have been possible based on his findings. The result of these calculations is an EUV of £3,350,000 (per para 78 and Table 6 of his proof).
Mr Wells then set out his assumption that the Appellant would be looking to repair and renovate the houses such that they could be sold once completed (with 11 being sold subject to protected tenancies). He explained how this would require the renovation to be to a mortgageable standard and to have a minimum of 60 years economic life. It is clear from the evidence before this inquiry that Structherm can provide neither of these, being un-mortgageable and only guaranteed for 30 years.
Having made that assumption, Mr Wells’ written evidence details at para 87-92 his calculations of the projected revenues from a sale of fully refurbished houses. This is summarised in Table 8 of his proof, which shows a total revenue of £11,824,625. The next stage of his assessment is to deduct the estimated costs of repair and renovation to establish the profit to be derived versus the EUV. The details of these calculations are set out in his Tables 9 and 10. Having then carried out a residual valuation calculation (detailed at Appendix AWW2 to his proof) he concludes, at para 103, that the refurbishment project would result in a loss of £732,581.
This is followed by a sensitivity analysis of how much lower the cost of repair/refurbishment would have to be in order to achieve an acceptable return of 20% profit on the project. The result is £41,000 per unit less than the midpoint in his Tables 9 and 10. Ms Wigley questioned this sensitivity analysis and submitted to the inquiry some calculations of her own as to what this figure would be if seeking a 15% or 16.3% profit instead of 20%. These calculations – verified by Mr Wells – showed that if the cost of repair/refurbishment to each house were £28,134 then a 15% profit could be achieved and if reduced to £26,149 then a 16.3% profit could be achieved (equivalent to that achieved by the proposal).
These points were made to support SOH’s case that if redevelopment were unavailable to the Appellant (because permission was refused) and if Structherm could be used to refurbish the properties for £20,000-£28,000 per unit, then this would result in a viable outcome and a rational alternative.
However, what that analysis fundamentally ignores is that this calculation is rooted in a sale of the properties following refurbishment. Not continuing to rent them at the existing rents. Thus, it would not result in the existing tenants (aside from those with protection) remaining in situ and would not avoid the harms alleged by SOH. Further, as Mr Wells pointed out, his calculations are also rooted in refurbishment being carried out to a mortgageable standard, which would not be the case if Structherm were used. Further still, houses which will remain un-mortgageable (though refurbished) would not achieve the same prices on sale as given in Mr Wells’ sensitivity analysis. In all this makes Ms Wigley’s alternative sensitivity calculations rather academic.
Aside from this discussion of the sensitivity testing, the only substantive critique levelled at Mr Wells’ assessment of viability was Mr Rogers’ suggestion that costs of certain refurbishment works given in Tables 9 and 10 appeared to him to be very high. However, those were figures obtained from a professional chartered quantity surveyor – in accordance with industry practice; were unchallenged by either the Council or SOH prior to the roundtable itself; and in any event benefit from a significant margin for error given the sensitivity testing.

The effect of refurbishment on rental prices

In response to a question from you, Mr Wells explained that he had not, in preparing his proof, run the numbers for a scenario where the properties were refurbished and then rented out because, in his professional judgment, the plan of any reasonable business owner would be to sell the properties. He did, however, give evidence orally as to the likely consequences of investment in a Structherm refurbishment on rental prices.
Based on the figures provided by Mr Lawton in the structural roundtable he estimated that to refurbish all the houses just using Structherm would cost approximately £2.8m. Inevitably, as a commercial concern, the Appellant would need to recuperate this expenditure and – as Mr Lynch acknowledged during his evidence– was likely expect to do so through rental income or future sales. Mr Wells calculated, to secure even a modest yield of 6%, the rent of each property would have to rise by approximately £200 per month. This would bring the rents roughly in line with other private rental prices in the area which several witnesses on behalf of SOH and the Council have said would be unaffordable for the existing residents.
These calculations do not take into account the costs of: (1) the structural engineer’s report required prior to Structherm commencing work; (2) the costs of any structural remedial work that the engineer recommended in addition to Structherm; and (3) the costs of any internal refurbishment works.

Conclusion on viability of refurbishment

For the reasons given above, it is submitted on behalf of the Appellant that you should clearly prefer the combined evidence of Mr Askew and Mr Wells that a structurally satisfactory refurbishment is simply not a viable option for a private landlord. Even if, you were to accept SOH’s evidence that Structherm can provide an adequate structural solution for these houses, the evidence before this inquiry overwhelmingly points to the conclusion that this is:
73.1. Not a commercially viable solution for the Appellant to pursue;
73.2. Not one that the Appellant will pursue even if permission is refused which is confirmed in Mr Sheppard’s Appendix 6 and re-iterated yesterday in his evidence; and
73.3. Would result in the existing residents having to leave the site due to the intrusive nature of the works and/or a necessary increase in rent that is said to be unaffordable.

The ability to sell the site to the Council or a Registered Provider

The evidence before the inquiry regarding a potential sale of the site includes: that given by Mr Tinsdale in cross-examination; the note at page 4 of the October Plans Panel Minutes [CD05.41]; Leeds’ Letter re Deputation to Full Council [CD07.10]; and the note submitted by the Appellant on this matter [CD05.34]. It is very clear from this evidence that a sale to the Council has been discussed in the course of the consideration of this application, but never pursued by the Council. The Council’s concern as shown in the October minutes is the capital expenditure required.
Similarly, Leeds Housing Department has ongoing relationships with 30 housing associations as detailed in the s106 agreement. They have had 3 years to enquire whether such an association would be interested in purchasing the site. Yet at no time have they suggested that they have found one.
Further, all three registered providers who expressed an interest in acquiring the site to the Appellant indicated that this was subject to planning permission being secured for its redevelopment.
The sale of the site as it is to the Council or a Registered Provider has therefore been discounted. In any event, the sale of a site to any 3rd party, simply passes the issue of what to do about the existing housing, in light of the Dyson Report, to a new owner who will be faced with the same options as the Appellant (as Mr Wells recognises at para 81 of his Proof [CD05.07]).

Conclusion on Proposition 2

Having discounted the other three options, it is clear that the only viable solution for this site is the Appeal proposal itself (“Option 3”).

PROPOSITION 3 – THE APPELLANT’S RIGHTS UNDER LANDLORD AND TENANT LAW

This proposition can be shortly stated as it is now common ground between all three parties to this appeal that the Appellant has a “fallback” position here which is to rely on its rights under section 21 of the Housing Act 1988 and to serve “no fault” notices on all the existing residents with AST. The legal basis for this is summarised at Appendix 5 to Mr Sheppard’s proof and further detail of the relevant statutory provisions is set out at Appendix 1 to these closing submissions.
This was accepted by Mr Tinsdale during cross-examination, who also confirmed that a court considering a claim for possession under section 21 has no discretion as to whether or not to grant possession and therefore that neither the grant or refusal of planning permission would affect the outcome of such a claim. Neither Mr Brooks nor Mr Lynch sought to dispute this evidence.
It is also important to emphasise that the grant of planning permission does not preclude the need for the Appellant to seek possession of these properties through the courts in the usual way and subject to the usual protections. Nor does it make it any easier for the Appellant to obtain such a possession order.
Rather ironically, Mr Lynch admitted that, had the Appellant served section 21 notices earlier this year and obtained vacant possession of all but the 11 protected units prior to the appeal commencing, the planning balance would look very different. Despite this being the exact same action that would cause all the alleged harms (aside from heritage) that have been debated in the course of this inquiry.
Thus, while the weight to be given to the existence of such a fallback remains in dispute between the main parties to the appeal, there is consensus that it exists and that it falls to be weighed within the planning balance. In view of significance of the fallback, and its implications for what action the Appellant would likely take were permission to be refused, it is submitted that great weight should be given to it.

PROPOSITION 4 – YOU CAN SAFELY DISCHARGE YOUR DUTIES UNDER THE EQUALITY ACT 2010 AND HUMAN RIGHTS ACT 1998

Two legal duties incumbent on you to discharge in determining this appeal were referred to in opening submissions:
84.1. The Public Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010;
84.2. The duty to act in a way which is compatible with ECHR rights under section 6(1) of the Human Rights Act 1998. Specifically, in this case, to have regard to the best interests of children when considering any potential interference with Article 8.
The relevant legislative provisions and associated case law are discussed in Appendix 1.
Mr Teasdale, Mr Lynch and Dr Buroni all agreed that there is adequate information before you to enable you to have “due regard” to the objectives set out in section 149(1) of the Equality Act 2010 and thus to discharge the PSED.
All that remains therefore Sir, is for you to in fact have “due regard” to those objectives in reaching a decision on this appeal.
It is notable that there is no evidence or contention before this inquiry as to how granting permission for this proposal would undermine the objectives set out in section 149(1).
Mr Teasdale, an expert in these matters, was given multiple opportunities to give such evidence in cross-examination but was unable to do so. He simply floundered when pressed to do so.
The simple position is this is not and should never have been contended to have breached section 149. The effect is absolutely identical for those with protected characteristics and those without.
The weight to be given to Mr Teasdale’s evidence was also significantly undermined by his inability to explain the methodology used to arrive at the figures relied upon in his proof of evidence.
Mr Lynch accepted that in reality SOH do not contend that there is a breach of the PSED as their case focusses on the wider community impact irrespective of protected characteristics.
Against this backdrop there is the judgment of Dr Buroni, based on a detailed assessment and significant expertise in such matters, that, far from undermining the objectives in section 149(1), the appeal proposal would in fact support and further them.
With regards to effects on children, it is accepted by the Appellant, as Dr Buroni made clear in his evidence, that there will be harm to those residents who have to leave the site. It is also recognised that those harms may be felt more keenly by children than by adults especially if they have to move schools as a result. The harm resulting from displacement of existing residents is given very significant weight by Dr Buroni in his equality impact assessment.
However, as the case law cited by Ms Bell in opening provides, “although a primary consideration, the best interests of a child are not determinative of the planning issue”: Stevens v SSCLG [2013] EWHC 792 (Admin), at [69]. Rather it is a matter which:
“must be kept at the forefront of the decision-maker’s mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of a child is proportionate.”
It is submitted that, as with the PSED, you now have sufficient evidence before you regarding the potential impacts of this decision on the interests of children, to make that assessment.
It is further submitted that it would be reasonable, and legally defensible, in light of the evidence before this inquiry and the other material considerations at play, to reach a judgment that any adverse impact on children that result from the grant of permission is proportionate.
This is especially so given the inevitability of the forthcoming displacement of those children from this site irrespective of whether planning permission is granted, for the reasons already given.

3 – THE PROPOSAL IS IN ACCORDANCE WITH THE DEVELOPMENT PLAN

This remains a matter of dispute between the three main parties with SOH and the Council’s planning witnesses both contending that the proposal breaches the development plan, albeit for different reasons.
You first heard Mr Brooks’ evidence that – despite compliance with 27 of the 28 policies that the parties agree are relevant – breach of just one strand of three of part of the General Policy (“to secure development that improved the...social conditions of Leeds”), which was never intended as a development control policy leads to the proposal being in breach of the Development Plan.
This is, as Mr Sheppard put it, a “remarkable” conclusion to have reached, especially in light of the fallback position that would see the very harm that allegedly puts us in breach of that part of the General Policy arise irrespective of the grant of planning permission.
Mr Brooks reaches this conclusion on the basis – as later put by Ms Bell – that this policy is fundamental to the Development Plan.
However, as Mr Sheppard correctly noted, the policy is only fundamental in that it reflects the fundamental approach that is set out in the NPPF and that underpins the entire planning system.
Of even greater significance perhaps is the fact that this allegedly fundamental policy is not relied upon in this manner by the Council Officers who wrote the plan and rely on it on a daily basis. Additionally, we have not seen one other example where the LPA have utilised this policy in a reason of refusal and even more strangely as the only policy in a reason for refusal.
You subsequently heard Mr Lynch give evidence about a number of additional policies that he alleges are breached by the proposal: SP6, H5, P11, EN1 and EN6. Taking these in turn:
104.1. SP6 is a strategic policy regarding the allocation of housing land. Mr Lynch accepted in examination in chief that the content and detail of the policy are “not all that relevant”. Nonetheless he says it is breached because this proposal does not contribute more housing than exists on the site currently. It is submitted that this must surely mean that the proposal is neutral as regards this policy or, as was the view taken by the Council Officers, members, Mr Brooks and Mr Sheppard, that the policy is not relevant to this proposal.
104.2. H5 deals with the requirement for affordable homes and – as Mr Lynch himself recognised in his evidence – if fully complied with by this proposal. However, he says that the purpose of the policy is breached because it would be replacing 59 “de facto” affordable homes with market houses. Firstly, this is factually inaccurate as the 7 homes occupied by regulated tenants will – by law – have to remain “de facto” affordable. There is also no evidence of any intention by the landlord to increase the rents of the 4 assured tenants who will be rehoused in the scheme. Second, and perhaps more significantly, the parties agree that the current homes are not affordable in NPPF terms, and therefore would not themselves comply with this policy which specifically requires a mix of Intermediate and Social Rented affordable dwellings “as defined by the NPPF”: see para 5.2.14 of the supporting text.
104.3. P11 is of course relevant as it deals with Non-Designated Heritage Assets. However, neither Officers, nor Members took the view that this had been breached as is evident from the fact that there is no heritage RfR. Further, for reasons which I will come onto later in these submissions, the significance of these particular heritage assets is low and thus the harm which stems from their loss is limited.
104.4. EN1 is concerned with reducing carbon emissions. Mr Lynch alleges a breach of this policy because the development will involve an embodied carbon cost that it will take some 20 years to recover. However, as Mr Sheppard noted in his evidence, compliance with this policy is secured by condition 19 which requires a “renewable and low carbon report” to be submitted to and approved in writing by the Council prior to the commencement of any phase.
104.5. Finally, EN6 which governs strategic waste management. This is said to be breached simply because construction, demolition and excavation is the waste stream that causes the most waste according to the table in EN6 and the development would contribute to this. However, this is another policy that has not been identified as relevant by anyone other than Mr Lynch. Further, as Mr Sheppard pointed out in his evidence, it is a strategic policy which sets out how the Council will manage waste from different streams, it is not intended to preclude any development that would produce construction or demolition waste.
To consider against these two approaches you have:
105.1. The fact that it is common ground between the Council and the Appellant that the proposal would comply with 27 out of the 28 relevant policies. Even Mr Lynch accepted that the proposal complies with a significant number of Development Plan policies: see para 28 of his Proof [CD5.15].
105.2. Mr Sheppard’s exceptionally detailed analysis of the development plan policies which includes a proper weighing of each one that is relevant: see Appendix 1 to his Proof [CD05.19]. This emphasises quite how determinative a weight Mr Brooks’ balancing exercise must place on the General Policy and Mr Lynch’s on policies accepted by everyone else to have been complied with.
105.3. Mr Sheppard’s clear professional judgment, in light of that “long and exhaustive” process, that this proposal very clearly accords with the development plan. This is not, as Ms Bell sought to suggest, the result of an arithmetic exercise of how many policies have been complied with versus how many have not, but of a careful consideration of all of the plan’s policies to seek an understanding of what the development plan is looking for as a whole. This, unlike the selective approach adopted by Mr Brooks and Mr Lynch, is fully compliant with the approach mandated by case law (e.g. R (Corbett) v The Cornwall Council – see Appendix 1).
105.4. Officers’ conclusion following two years of considering the application, that the proposal complied with the Development Plan.
105.5. Members’ conclusion that the proposal accords with the Development Plan. As I put to Mr Brooks during cross-examination, this is clear from the wording of RfR1 which expressly refers to “material considerations that outweigh the Local Plan”.
It is submitted that this evidence very clearly weighs in favour of a finding that the proposal complies with the Development Plan.

4 – THE BENEFITS OF THE PROPOSAL

Moving on to the second stage of the planning balance required under section 38(6) of the Planning and Compulsory Purchase Act 2004 and paragraph 11 of the NPPF, it is the Appellant’s case that the following eight benefits of the proposal are material considerations which weigh as set out Mr Sheppard in favour of the grant of permission:
107.1. The provision of 59 market houses which should be given substantial weight;
107.2. The provision of 11 genuinely affordable houses which in the light of Mr Tinsdale’s evidence should be given substantial weight;
107.3. The provision of a high-quality design which in the light of the NPPF and the Government’s aspirations in the White Paper be given substantial weight;
107.4. Development in a sustainable and accessible location which in the light of the NPPF should be given substantial weight;
107.5. Environmental benefits which should be given moderate weight;
107.6. Economic benefits which should be given substantial weight;
107.7. The provision of modern, adaptable and accessible houses which should be given substantial weight;
107.8. Optimisation of land which in the light of NPPF should be given substantial weight; and
107.9. Re-use of brownfield land which in the light of the NPPF should be given substantial weight.
With regards to the weight to be given to these benefits, it is submitted that the approach adopted by both Mr Lynch and Mr Brooks is fundamentally flawed. The benefits of the proposal that is before you – that for which an application for planning permission has actually been made – must be considered independently of any alternative proposal which is not before the inquiry.
The case law (summarised in Appendix 1) is clear that such alternatives may in exceptional cases be material planning considerations to be weighed in the overall balance. They cannot, however, be deployed to reduce the weight attributable to the benefits of the proposal as against the existing position.
In light of this, it is submitted that the assessment of these benefits by Mr Sheppard, both in his proof and in his oral evidence, is the only proper and lawful assessment of those benefits before this inquiry.

BENEFIT 1 – THE PROVISION OF 59 MARKET HOUSES

The appeal proposal will provide 25, 2-bed properties, 25, 3-bed properties and 20, 4-bed properties all of which will have good sized gardens. 11 of the 70 dwellings will be provided as affordable houses with the remaining 59 being market houses. Over half will assist independent living by being designed to be adaptable and accessible. The layout of the proposal can be seen from the Landscape Masterplan Rev F dated 11th September 2020 [CD8.02].
Mr Sheppard explained how the provision of housing is a benefit to which he gives substantial weight, predominantly as a result of the fallback position. He acknowledged Mr Lynch’s view that it might at best be considered to be neutral because there is no net increase in the number of houses on the site. However, he went on to note the structural evidence, from the Dyson Report, supported by Mr Askew, that the existing houses will not remain on the site for much longer. Therefore, their replacement with houses with a significantly longer lifespan must be a benefit.
11 of these new homes will of course be provided to the existing assured and regulated tenants on the site, providing them with materially improved housing without altering the terms of their tenure.

BENEFIT 2 – THE PROVISION OF 11 GENUINELY AFFORDABLE HOUSES

As previously noted, it is not disputed that the existing houses on this site are not affordable in accordance with the NPPF definition. The Council and SOH seek to suggest that they nonetheless serve the same purpose as policy-compliant affordable housing. However, that completely ignores the fact that a key feature of “true” affordable housing – and specifically affordable housing for rent – is that it is secured “to remain at an affordable price for future eligible households”: NPPF, Glossary [CD2.01]. Mr Tinsdale – the only housing expert to give evidence to this inquiry – accepted in cross-examination that that was not the case in respect of the majority of these homes. The rents – aside from for the regulated tenancies – could lawfully be increased by the landlord so long as the appropriate notice is served.
Thus, this proposal would bring to the site, for the first time, 11 genuinely affordable homes, secured by s106 agreement. In light of Mr Tinsdale’s stark evidence about the scarcity of affordable housing in the local area, this has to be seen as a significant benefit – as he indeed accepted. For this reason, Mr Sheppard gives this benefit substantial weight.

BENEFIT 3 – THE PROVISION OF A HIGH-QUALITY DESIGN

Very limited time at this inquiry has been dedicated to the design of the new houses which would be brought forward by the proposal. However, it is a matter of common ground between the Council and the Appellant that the proposal is considered to be of a high- quality design: SoCG LPA, para 7.14 [CD5.03]. Mr Lynch stated in cross-examination that – despite not having himself examined this aspect of the proposal – he had no reason to query the view reached on this issue by the two main parties.
Mr Sheppard explained how he gave this particular benefit great weight, especially in light of the aims of the NPPF in relation to good design and the general direction of travel indicated in the Planning White Paper.

BENEFIT 4 – DEVELOPMENT IN A SUSTAINABLE AND ACCESSIBLE LOCATION

The fact that the site is a sustainable site for housing is not disputed by any of the main parties. There is clearly housing on the site currently and it is a site that is accessible by a range of different forms of transport. This was accepted by Mr Lynch as being a benefit, especially in view of the contribution being secured through the s106 agreement to the real time passenger information display at the bus station. Mr Sheppard gives this benefit great weight.

BENEFIT 5 – ENVIRONMENTAL BENEFITS

It is uncontroversial that the new homes proposed will be more energy efficient than the existing Airey properties and, as a result, will lead to a reduction in carbon emissions. This is made clear in the evidence of Mr James Blake – the only expert in such matters to give evidence to this inquiry: see Appendix 4 to Mr Sheppard’s Proof.
That this is a benefit of the scheme is disputed by Mr Brooks and Mr Lynch because of the embodied carbon which results from a demolition and rebuild. They go so far as to criticise Mr Blake’s evidence for not having assessed and compared the carbon benefits of the appeal scheme against SOH and the Council’s hypothetical alternative scheme. This despite not having provided any evidence of the carbon impacts of that hypothetical scheme themselves.
However, Mr Blake’s evidence does recognise the effects of embodied carbon and sets out how this has to be weighed against the energy efficiency savings. This was reflected in the moderate weight that Mr Sheppard attached to this benefit.

BENEFIT 6 – ECONOMIC BENEFITS

The economic benefits of the development include: supporting local construction jobs and apprenticeships during the build; the use of locally sourced materials which will support the local economy; additional council tax receipts in respect of those properties that are currently vacant; New Homes Bonus for the Council; and the required CIL payment. These benefits are recognised by Mr Lynch at para 7.19 of his Proof [CD5.14] and Mr Lynch accepted in cross-examination that the employment of people during the construction programme was a benefit.
Mr Sheppard set out how he gave great weight to these particular benefits, especially in light of the objective contained in paragraph 8(a) of the NPPF.

BENEFIT 7 – PROVISION OF MODERN, ADAPTABLE AND ACCESSIBLE HOMES

Both Mr Sheppard and Dr Buroni spoke to how the proposal would provide more than the policy required number of adaptable and accessible homes (34 in total, including 11 of the affordable units) in addition to two wheelchair accessible homes. This is a very clear benefit, both to existing residents who will be rehoused in the scheme as well as to the “newcomers” to the scheme. You heard how Mr Sheppard gave this benefit substantial weight.

BENEFIT 8 – OPTIMISATION OF LAND

Paragraph 127(e) of the NPPF provides a clear injunction that planning decisions should
ensure that developments “optimise the potential of the site to accommodate and sustain an appropriate amount and mix of development”. This is a site that currently contains 70 homes, 14 of which are vacant (with one more soon to become vacant).
All but two homes are in need of significant structural repair in the near term in order to remain capable of occupation, but such repairs are simply not a viable course of action for the Appellant. Therefore, the proposal to build 70 new houses is the best means of optimising the potential of this site.

BENEFIT 9 – RE-USE OF PDL

The NPPF repeatedly seeks the re-use of such land. This proposal does that in full.

5 – THE ALLEGED IMPACTS

Against those benefits need to be weighed any harms arising from the development that also constitute material planning considerations. Two such harms have been the subject of discussions during the course of the inquiry: (1) harm to non-designated heritage assets; and (2) the dissipation of the existing community.

ALLEGED IMPACT 1 – HARM TO NON-DESIGNATED HERITAGE ASSETS

There are several significant matters of agreement with regards to this topic:
129.1. The existing houses are locally significant, non-designated heritage assets.
129.2. The proposal will result in the total loss of those heritage assets.
129.3. The loss of these heritage assets, while considered by both Officers and Members during the course of the application, was not found to justify a RfR on heritage grounds.
129.4. The applicable policy framework comprises: NPPF, paras 197 and 199, and Policy P11 of the Core Strategy.
The starting point is that the LPA, with their specialist advisors, do not contend that this is an impact justifying refusal and never have taken that position.
This is solely a SOH point.
Mr Kitchen gave considered and helpful evidence at the roundtable regarding the development of these properties by the Coal Board to house mine workers and how the estate was designed to foster a community. As he put it, it is not the look of these houses but the social history of why they were built and where they were built that requires protection. It was clear from his evidence that it is the social significance of the estate and the original use of the housing as a substitute for social housing, rather than the buildings themselves, that is of local significance.
This value is recognised by Dr Usher at para 5.11 of her proof [CD5.20] and described by her as their “communal value”. She goes on to describe the intention to preserve a similar group of Airey Houses acquired by the Beamish Museum in County Durham. In Dr Usher’s professional opinion, this “communal value” aspect of the Airey Houses will be appropriately and contextually expressed in that Museum.
In addition to this communal or social value, Dr Usher recognises evidential, historical and aesthetic value to the Airey Houses: see paras 5.9 and 5.10 of her proof. However, she ultimately concludes that these values are limited for the following reasons:
134.1. The evidential value is low as a result of mass-production and a good understanding of the methods of construction;
134.2. The historical value is limited in that they represent just one form of housing used to address the post-war housing shortage; and
134.3. The aesthetic value is limited in that it is embodied in any surviving Airey House and is not unique to those within the appeal site.
Dr Usher also explained at the roundtable – and in her proof – how the architectural and aesthetic significance of these properties lies in their external appearance and that, the refurbishment works required as a result of the Dyson Report, would likely result in the total, or near total, loss of that significance.
Ultimately, Dr Usher concludes, that in carrying out the “balanced judgment” required by paragraph 197 of the NPPF, the significance of these houses as heritage assets should be regarded as low. This in turn informs the scale of loss that would be entailed by this scheme.
Also of relevance is the conclusion reached by Officers at paragraph 10.29 of their May Report to the Plans Panel [CD7.05] and Section 7 of their October Report [CD7.02] and the Conservation Officer’s Final Comments [CD6.27]. In sum, in light of the heritage work produced by the Appellant, they concluded that while the local significance of these Airey Houses will clearly be affected by the proposal, the national and regional significance will remain due to the prevalence of other Airey Houses in the country: see paragraph 7.7 of the October Report. Their “balanced judgment” is summarised at paragraph 7.15 of the October Report.
Finally, Dr Usher gave evidence regarding the ability to record the significance of these assets and Mr Sheppard confirmed that this would be secured by proposed condition 18. While, paragraph 199 of the NPPF precludes you from taking the ability to record such evidence into account in deciding whether loss of the assets should be permitted, the condition and Dr Usher’s evidence confirm compliance with the injunction contained in first part of that paragraph.

ALLEGED IMPACT 2 – DISSIPATION OF THE EXISTING COMMUNITY

The negative effects resulting from dissipation of the existing community have been the subject of significant evidence throughout the course of this inquiry.
It is by no means disputed by the Appellant that the loss of the existing community will lead to harm being suffered by those who currently form part of that community.
Such harm includes the possibility that people will have to move out of the area which could result in their losing contact with their current support network and in children having to move schools. This harm is recognised in the oral and written evidence of both Dr Buroni and Mr Sheppard.
However, in assessing the weight to be given to that harm, several factors have to be borne in mind:
142.1. The first is that the Council had the opportunity to significantly mitigate the number of existing residents that would be displaced by agreeing to a local lettings policy whereby 11 existing households would be given preference in respect of the 11 affordable housing units on the scheme. This was entirely within the Council’s gift and they have had over 3 years since the application was submitted to surmount any practical issued associated with such a policy. The truth of the matter was summarised by Ms Bell yesterday: the Council will not prioritise the existing residents over others in the area who are in housing need.
142.2. The second, is that – despite repeated references to this being a “longstanding” community – the reality is that a significant proportion of the households on the site – 20 out of the 45 at risk of displacement – have been there for fewer than 3 years. They cannot be considered to form part of the longstanding community. Indeed, in the October minutes the Council themselves referred to the Community as “transitory”.
142.3. The third, and most significant, is the fact that the displacement of those residents who occupy their homes on ASTs will be displaced in the short term regardless of the outcome of this appeal. That is the inevitable consequence on the need for structural intervention in the existing properties combined with the non-viability of a refurbishment option. Ultimately this means that, planning permission or not, the Appellant will exercise its powers under landlord and tenant law and give notice to the tenants of the existing houses in the short term. This was made very clear in Mr Sheppard’s oral evidence to this inquiry. This demonstrates that the harm in question does not stem from the proposal itself but from other external factors.
In sum, therefore, while the Appellant recognises the significant harm which will result from the displacement of the existing AST tenants from their homes, it is a harm which the Appellant submits should be given only limited weight in the overall planning balance because it will happen in any event.

6 – THE OVERALL PLANNING BALANCE

Under section 38(6) of the PCPA 2004, the appeal must be determined in accordance with the development plan, unless material considerations indicate otherwise. It is the Appellant’s case that, for the reasons set out in these closing submissions, this proposal is, very clearly, in accordance with the development plan.
In addition to this, the material considerations weigh strongly in favour of allowing the appeal.
We have been through the nine benefits of the scheme, eight of which, we say, should be given great weight.
The Council and SOH’s basis for disputing the existence of some of these benefits, or the weight to be given to them, is based on a fundamentally flawed approach to considering alternative schemes which is simply the wrong approach.
To be weighed against this are the two alleged impacts of the proposal: (1) heritage harm; and (2) dissipation of the existing community. For the reasons given in these closing submissions, the Appellant gives only limited weight to these two harms.
Consequently, it is very clear that the benefits of this proposal outweigh those harms and that both the development plan and material considerations indicate that the appeal ought to be allowed.

7 - SUMMARY AND CONCLUSIONS

The Appellant spent two years working with the Council in relation to this application, to develop a scheme which provided a viable, long term solution for this site.
When permission was refused by members – contrary to Officers’ recommendation – on the basis of the dissipation of the existing community, the Appellant was faced with a choice.
It could have made its own life easier by exercising then its rights under landlord and tenant law to obtain vacant possession of the vast majority of the site.
A substantial number of the issues discussed at this appeal would have fallen away.
Instead, the Appellant opted to allow the existing tenants to remain in situ for as long as evictions were not necessary.
You have heard that the intention is to continue to adopt such an approach.
However, you have also heard how the option of such an approach will not continue for much longer.
As these houses reach the end of their occupiable lives, evictions will be required. Without permission the site will simply become derelict as those tenants in red, and subsequently amber rated homes have to leave.
The harms of community dissipation discussed at length during the course of this inquiry will arise absent the benefits associated with the new houses.
The grant of planning permission is hugely positive because it is the one option that will bring this matter to a successful resolution bringing the land back to full beneficial use in a viable manner with 70 modern, excellent homes providing for a new community who can live in exactly the same way as the current community.
A new community without a sword of Damocles over their head that at any moment the properties will no longer be fit for habitation.
The real villain in this whole case is the properties themselves – their structural design compels them to be replaced by the passage of time alone.
The time for them to be replaced is now just like the redevelopment of the vast majority of the estate that has already occurred.
With the grant of consent comes benefit, renewal, beneficial use and occupation.
In contrast with refusal will only come delay for a short period until the inevitable dissipation of the community in any event.
That is absolutely inevitable and there is no credible evidence to disturb that finding.
All parties would like it to be different but it is not.
These properties must be attended to and the consequence is that much of the existing community will have to go. Unfortunately, that is what will happen.
In those circumstances please choose a decision which brings conclusion to this matter to allow the 70 new modern homes to provide houses to a new community and all the benefits that those occupants will enjoy once the development is completed.
For all these reasons, the Appellant urges you to allow this appeal and to grant permission for this much needed development to come forwards.

APPENDIX 1 – APPLICABLE LEGAL PRINCIPLES

The Appellant addressed four areas of law applicable to this appeal in its opening. Those principles are summarised again here for ease of reference with additional detail in respect of questions that have arisen during the course of the inquiry. The Appellant also addresses the matter of compliance with Article 8 of the ECHR, as imposed on the Inspector through section 6(1) of the Human Rights Act 1998, raised by the Council for the first time in its opening speech to the inquiry. Finally, the Appellant summarises the legal meaning and consequences of the properties having been “designated defective”.
Area of law 1 – The interpretation and application of section 38(6) of the Planning and Compulsory Purchase Act 2004
If the development plan policies are material to an application for planning permission then the decision must be taken in accordance with the development plan unless there are material considerations that indicate otherwise.
That is the statutory effect of Section 70(2) of the TCPA 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004.
It is reinforced in the National Planning Policy Framework (“NPPF”) which states that planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise [paragraph 2].
What constitutes a material consideration is a matter for the courts – Tesco Stores Ltd v SOSE [1995] 1 WLR 759 – however, the amount of weight to be given to a material consideration is a matter for the decision maker – Bolton v SOSE [1991] JPL 241.
The effect of these provisions is to create a presumption in favour of the development plan – City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447.
That presumption, however, is rebuttable by other material considerations that may indicate otherwise – Stratford on Avon DC v SSCLG [2014] JPL 104.
The relevant time for assessing the compliance or not with the development plan is at the time of the decision – Nottinghamshire CC v SOSE [1999] PLCR 340.
That duty requires the decision maker to consider policies even if they have not specifically been drawn to his or her attention – St James Homes v SSETR [2001] JPL 1110.
If policies within the development plan conflict, then it must be for the decision maker to determine which policies are given more weight in reaching an overall conclusion as to compliance with the development plan. It is often the case that different policies may pull in different directions – R (Corbett) v The Cornwall Council [2020] JPL 1277.
The presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision making (see NPPF para 12).
The consequence of these well-known principles is a very clear framework for planning decision making. Compliance or not with the development plan must be assessed first, prior to and independently of, the consideration of any other material considerations. Only then can other material considerations be considered, and a weight attributed to each by the decision-maker.
Area of law 2 – The relevance and materiality of alternative proposals
The proper approach to alternative sites was summarised by the Court of Appeal in R
(Mount Cook Land Ltd) v Westminster CC [2003] EWCA 1346:
13.1. In the context of planning control, a person may do what he wants with his land provided his use of it is acceptable in planning terms (i.e. upon consideration of the test in s.38(6) of the Planning and Compulsory Purchase Act 2004 above);
13.2. There may be a number of alternative uses from which he could choose, each of which would be acceptable in planning terms;
13.3. In the absence of conflict with planning policy and/or other planning harm, the relative advantages of alternative uses on the application site are normally irrelevant in planning terms;
13.4. Where application proposals would amount to preservation or enhancement in planning terms, only in exceptional circumstances would it be relevant for a decision-maker to consider alternative proposals not themselves the subject of a planning application under consideration at the same time;
13.5. Even in exceptional circumstances where alternative proposals might be relevant, inchoate or vague schemes and/or those that are unlikely or have no real possibility of coming about would not be relevant or, if they were, should be given little or no weight;
13.6. While weight is essentially a matter of planning judgment, the court should not be shy in an appropriate case of concluding that it would have been irrational of a decision-maker to have had regard to an alternative proposal as a material consideration or that, even if possibly he should have done so, to have given it any or any sufficient weight so as to defeat the application proposal.
Those principles were applied in the context of a planning inspector’s decision in Lisle- Mainwaring v Carroll [2018] JPL 194.
Taken together these principles illustrate that it will be an exceptional case where an alternative proposal is even a relevant consideration for a decision-maker in relation to a planning application. It is certainly not a consideration that can be taken into account at every stage in the decision-making process to undermine the benefits attributable to the application scheme. It will therefore be an even rarer case, where it will be rational for a decision-maker to have given such an alternative sufficient weight so as to defeat the proposal that has been applied for.
Area of law 3 – The rights of landlords and tenants under regulated, assured and assured shorthold tenancies
For the purposes of this appeal, the following are the key characteristics of regulated, assured and assured shorthold tenancies:
Regulated Tenancies – governed by the Rent Act 1977 – benefit from the greatest security of tenure of all the types of private sector tenancies.
17.1. When the contractually agreed term of the tenancy comes to an end, a statutory tenancy arises automatically and can only be brought to an end by a court order.
17.2. To obtain such an order the landlord has to satisfy a court that: 17.2.1. The contractual tenancy has been brought to an end; and
17.2.2.“Suitable alternative accommodation is available for the tenant (or will be available when the possession order takes effect)”; or
17.2.3.One of the statutory grounds in schedule 15 to the Rent Act 1977 are made out. These grounds are more limited than those for seeking possession of assured tenancies.
17.3. Regulated tenancies also benefit from a statutory rent control regime.
Assured Tenancies – governed by the Housing Act 1988 – benefit from a similar form of security of tenure to Regulated Tenancies.
18.1. Once the contractually agreed term of the tenancy has expired, a statutory tenancy automatically arises which can only be terminated by court order.
18.2. To obtain such an order the landlord has to establish one of the statutory “grounds” for possession set out in schedule 2 to the 1988 Act. These include: the tenant having fallen into significant rent arrears; or – in cases where the landlord acquired its interest in the property prior to the grant of the tenancy – vacant possession is required in order to carry out development.
18.3. These tenancies do not benefit from any form of statutory rent control and the landlord is entitled to put the rent up by giving the necessary notice.
Assured Shorthold Tenancies (“AST”) – also governed by the Housing Act 1988 – are a species of Assured Tenancy but with more limited security of tenure.
19.1. In addition to the process set out above of obtaining a possession order by establishing one of the statutory grounds for possession, the landlord under an AST can obtain such an order simply by giving the requisite notice.
19.2. Such notices are referred to as “section 21 notices” as they are governed by section 21 of the Housing Act. They are sometimes referred to colloquially as “no fault” eviction notices because the landlord does not need to give or establish any reason for bringing the tenancy to an end.
19.3. The notice period required under section 21 was originally 2 months. This period was extended to 3 months by paragraph 7 of Schedule 29 to the Coronavirus Act 2020. This was subsequently increased to 6 months by regulation 3(7) of the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020.
19.4. As with other Assured Tenancies, there are no statutory rent control provisions.
The upshot of this, in the present appeal is as follows:
20.1. The Appellant will have to satisfy a court that suitable alternative accommodation will be made available to those tenants with Regulated and Assured Tenancies before it can obtain possession of their properties.
20.2. Alternatively, it will have to establish that some other “ground” for seeking possession is made out e.g. significant rent arrears.
20.3. However,toobtainpossessionofthosepropertiesletonASTstheAppellantsimply has to satisfy a court that it has given the requisite notice under the Housing Act 1988 (currently 6 months following temporary amendments introduced in response to the coronavirus pandemic).
20.4. It is only the market and the current state of the properties that leads to those that are let on Assured Tenancies and ASTs appearing “affordable”. There would be no requirement to maintain rents at this level if significant sums were invested to refurbish the properties.
There is therefore a material difference in the legal protection afforded to those with Regulated and Assured Tenancies versus those with ASTs.
This is purely a function of existing landlord and tenant legislation and is entirely unaffected by the grant or refusal of planning consent. The grant of planning consent is not therefore akin to signing an eviction notice for all the existing residents. There are important protections and procedures in place that the Appellant will have to comply with in order to obtain vacant possession of the site.
Area of law 4 – The requirements of section 149 of the Equality Act 2010
The application of Section 149 of the Equality Act to the making of planning decisions has very recently been considered by the Court of Appeal in the case of Gathercole v Suffolk County Council [2020] EWCA Civ 1179 which establishes and reiterates some important principles relevant to this appeal:
23.1. It falls upon the Inspector – as the decision-maker – to discharge the public sector equality duty set out in section 149. That is common ground. [SoCG 7.35]
23.2. Thedecision-makermusthavedueregardtotheneedtoachievethegoalsidentified in paragraphs (a)-(c) of section 149 – Baker v SSCLG [2009] PTSR 809. Those aims are to:
23.2.1. Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;
23.2.2. Advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it; and
23.2.3. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
23.3. This is not the same as a duty to achieve a particular result – Baker (above).
23.4. The duty must be exercised in substance, with rigour and with an open mind.
23.5. The weight and extent of the duty are highly fact sensitive and dependent on individual judgment – Hotak v Southwark LBC [2015] UKSC 30.
23.6. Theconsiderationsraisedbythedutyarenotthemselvesdecisive–youareentitled to balance those considerations against countervailing factors and the weight to be given to those factors is for you to decide – R(Coleman) v Barnet LBC [2012] EWHC 3725.
23.7. It is common ground that the duty only applies to those residents with protected characteristics [SoCG 7.38].
Therefore, in reaching a decision on this appeal, you must have due regard to the effect of that decision on those residents who have self-identified as having protected characteristics. This includes having regard to how (if at all) they may be affected differently to those without protected characteristics.
Ms Bell, for the Council, cited from a number of other cases regarding the PSED. The Appellant does not dispute the validity of those authorities nor the applicability of the guidance set out therein on the decision to be made in relation to this appeal.
Area of law 5 – The requirements of Article 8 of the ECHR and section 6(1) of the HRA 1998
This point of law was raised by Ms Bell in the course of her opening. The Appellant does not dispute that section 6(1) of the HRA 1998 makes it unlawful for a public authority to act in a way which is incompatible with an ECHR right, nor that Article 8 is engaged by a public-law decision which results in someone having to leave their home. The Appellant also accepts the case law regarding the interplay between Article 8 and having regard to the best interests of children.
The Appellant does wish, however, to draw attention to the very different factual context of the two planning decisions relied upon by Ms Bell: Stevens v SSCLG [2013] EWHC 792 and Collins v SSCLG [2012] EWHC 2750. Both were judicial reviews against the refusal of retrospective planning permission by a local authority to traveller families who had set up caravans on land for which that use was not permitted. In both cases the authority had commenced enforcement action and, therefore, the grant or refusal of planning permission had a very direct consequence on the family’s ability to remain on the site.
Those cases can therefore be distinguished from the present case where the grant or refusal of planning permission will not have a direct consequence on whether the families in question can remain on the site. Here, only a possession order granted by a court could require these families to vacate their homes. The right to obtain such an order is not derived from the grant of planning permission in the way that the right to commence criminal proceedings is derived from service of an enforcement notice (which itself is only valid because retroactive planning permission has been refused).
Area of law 6 – The designation of the Airey houses as “defective”
The Inspector has been provided with four documents during the course of the inquiry relating to the designation of the Airey houses as “defective”. These are:
29.1. The text of section 528 of the Housing Act 1985 [CD5.35] which provides the power for the Secretary of State to designate as “defective dwellings” buildings which are defective “by reason of their design or construction” and whose value has been significantly reduced by virtue of that defectiveness becoming generally known.
29.2. The Encyclopedia of Housing Law and Practice’s commentary to section 528 [CD5.36] which refers to the Housing Defects (Prefabricated Concrete Dwellings) (England and Wales) Designations 1984, which “incorporate 22 designations of classes of dwelling, each defined (in part) by diagram, but each of which suffers from the same qualifying defect (viz. “Ineffective protection of the embedded steel in the reinforced concrete loadbearing parts of the buildings”)”. It lists those 22 classes – the first of which is “Airey”.
29.3. A House of Commons Library Note entitled “Housing: construction defects” [CD5.37] which provides further background as to the scheme of assistance set up for those who had purchased properties from a local authority that had subsequently been found to be defective. That assistance scheme is no longer in force.
29.4. An extract from Hansard documenting a debate on the Housing Defects Act 1984 [CD5.38] which confirms the making of the Housing Defects (Prefabricated Concrete Dwellings) (England and Wales) Designations 1984 and the classes of buildings designated under that order (including Airey properties).
The reason for bringing the designation of the Airey houses as defective to the Inquiry’s attention was predominantly to emphasise that this form of construction was nationally recognised as having an inherent defect, notably, “ineffective protection of the embedded steel in the reinforced concrete loadbearing parts of the buildings”. For clarity, contrary to the suggestion made by a witness not expert in these matters, the designation does not mean that the properties present a danger to life.

Planning and Compulsory Purchase Act 2004, s.38(6) ↩︎
R (Mount Cook Land Ltd) v. Westminster CC [2003] EWCA 1346 ↩︎
(para 29.3, App Opening and see Mount Cook at para 30(4)). ↩︎
For convenience, this term is used as shorthand for all similar enveloping systems which may not all be under the Structherm banner. ↩︎
Any deterioration to the internal columns caused by humidity could be dealt with by other means such as ventilation. ↩︎
See R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) at [81] ↩︎
See R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) at [81] ↩︎
Stevens v Secretary of State for Communities and Local Government the Secretary of State [2013] EWHC 792 (Admin) at [69], endorsed by the Court of Appeal at [10] in Collins v Secretary of State for Communities and Local Government [2013] WLR(D) 376. ↩︎
Ibid. ↩︎
Ibid. ↩︎
Stevens v Secretary of State for Communities and Local Government the Secretary of State [2013] EWHC 792 (Admin) at [69], endorsed by the Court of Appeal at [10] in Collins v Secretary of State for Communities and Local Government [2013] WLR(D) 376. ↩︎
Ibid. ↩︎
McCombe LJ in Bracking & Others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, [2014] Eq LR 60 at [26]. ↩︎
Ibid. ↩︎
Assured Shorthold Tenancies are a form of tenancy agreement introduced by the Housing Act 1996. The landlord of a property let under an AST can obtain possession on the basis of one or more grounds of possession set out in schedule 2 to the Housing Act 1988 or under s.21 of the Housing Act 1988 once the agreed fixed term has come to an end. If the landlord has followed the proper procedure, the court must make a possession order under s.21. The landlord must, however, comply with the various procedural requirements set out in s.21. ↩︎
6 months’ notice must be given to the tenant (under regulation 3(7) of the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020), SI 2020/914. ↩︎
It is notable that during the course of the roundtable Mr Rogers told the inquiry that his firm – the Westdale Group – in addition to being an approved installer of the Structherm system – in fact purchased the company in 2016 and is now 100% owner of it. ↩︎

DAY 7: Pemberstone v. SaveOurHomesLS26

Jay Dee — Thu, 15 Oct 2020 16:05:00 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

(Missing a few minutes from the start)

Inspector: It is something I would really like to avoid at this stage.

Mr White: Mr Wells did, It puts down on paper he gave oral evidence in roundtable and asked him questons and it just confirms the position of exactly what he gives in evidence but gives references to source what he says. I will get it sent to my learned friends and get them to read it and update you by close of play today.

Mr White: Is it your intention, obviously you wont have had time to cast your eye over the 106.

Inspector: Not the new one yet.

Mr White: At some stage we do need to go back to ti. The headline figure is Leeds do not want to have a local lettings policy in the 106.

Inspector: I skimmed it and noticed it hadn't been added.

Mr White: I wanted you to have the context that as Mr Sheppard may make reference to it. It is formal position of Leeds they do not want a local lettings policy. The whole things is being drafted as a bilateral. We have to reach agreement with the LPA. You can take what you have seen that it is agreed between us and Leeds. If at end of today we get there which we should after completion of Mr Sheppard evidence and your content both myself and Ms Bell will get the necessary engrossments to meet your 2 week limit.

Ms Bell: That is the position of my client. They dont want to pursure the local lettings policy as part of the 106.

Inspector: Is there anything more you can tell me about that? Any reason for that stance?

Ms Bell: If it assists to deal now or wait for dedicated session. My instructing solicitor has been leading the negotiations on behalf of Leeds. May be better able to speak to those.

Inspector: Thats fine.

Mr White: I am just flag up we are going to talk a lot about the effect on the local community. We are content for a local lettings policy which would assist 11 AST residents being in the redeveloped site. I think it would assist if Ms Bell can put on the record what Leeds position was so Mr Sheppard has that. It will inform his evidence.

Inspector: I think its the case of to what extent Ms Bell can do that. Do you need a conversation with Mr Hills first Ms Bell.

Ms Bell: I might have to ask Mr Hills to assist as the information I have is from Mr Sheppard. I do not wish to mis-speak. Can I either have a few minutes, or if he is on the call can we check with him on the call.

Mr White: I'm content to have 10 minutes so Mr Hills and Ms Bell want to take 10 minutes as it is important to all 3 parties. All I want is Ms Bell to be in a position to tell you why we went in some detail and officers recommendation was a local lettings policy and clearly goes to the weight of harm and I know Ms Wigley is as interested as I am on the issue. To give you comfort on the day we are comfortable to take ten minutes. Anything else Ms Bell.

Inspector: Before we do that. There are some points that may assist in the break as well.

Ms Wigley: Sir, no. I would like clarity as to Leeds position as to why they cannot provide a local lettings policy before we go to Mr Sheppard, so thank you for that.

Mr White: 1. Mr Sheppard proof. Core Strategy, The NPPF, the two statements of common ground with Leeds and SaveOurHomes , CD7.10 Letter to Mrs Readman, finally planning report 0702, which has both reports, May reports and appendices.

Inspector: Points to raise concerning the evidence. I'm afraid I am going to perhaps disturb your best arranged plans for evidence in chief Mr White. A few points I have queries about. One may not directly concern Mr Sheppards to the extent of the others. I thought rather than waiting until heard questions from everyone else I thought be right to give notice up front as it may be explored in chief and I think that might assist everybody.

Mr White: I am very happy for you to ask your questions first you will obviously go again. Im happy to do it like that.

Inspector: Notice of areas im interested in now, first point, he may not be able to respond on, its something he touches on but he may not be able to go wider than that. Reflecting on Dr Buroni evidence and the answers he gave yesterday. In particular the table he got from Mr Teasdale. That composite table 5-31 the household information is that provided by Dr Buroni. He was quiet clear and I'm following through from his evidence it doesn't cover with all households it doesnt deal with two groups core parties are agreed are most vulnerable as it doesn't include age. Therefore it doesnt pick up those over 65 and those under 16.

If information of that nature is elsewhere I just need a clear direction. Im not sure it is. What I find would be of assistance is an extended table relating to households of protected characteristics identify by those same tenure groups the number of households of occupants who are 65 or over; The number of occupants under 16;. Number of people with disabiities which we have. grouping together for sake of completeness, Two more columns Number of households where there are both disabled, elderly and children. One given total of protected characteristics, its fine that they might not sum, because you may have households that have more than one protected characteristics.

(Connection issue)

Mr White: Can I park that in regard to Mr Sheppard. Dr Buroni is the only one who has access to the material. I would like him to check that with Mr Teasdale and if it could be shown to someone from SaveOurHomes. Of course Ms Wigley should see it. I don't think Dr Buroni or Mr Teasdale are on the call. If Ms Bell could contact Mr Teasdale and we will attempt to get hold of Dr Buroni.

Inpector: This is just point of clarification Mr Sheppard evidence 2.23 he is referring to revision. Mentions the documents that I have in front of me. I want to be clear about this I dont think I have the overlay comparing the garden sizes. I want to make it quite clear that I dont need it. I'm quite content with what I've got but I didnt want an impression of what is said in 2.2.3 that I have a certain document that I don't. But I don't want anyone to go to any trouble about that I am quite content about the revised plan.

Mr White: Ok, Thank you.

Inspector: 3.2.8 Phasing Intentions: There are references to those. Mr Sheppard said there is limited information that the appellant has provided. Some detail given in the panel report october in October report at 4.9 and what i would like to know is what is set out their is that the Appellants intention?

Mr White: Mr Sheppard can deal with that sir absolutely.

Inspector: In relation to that there are aspects of the appeal proposal that have been touched on the last few days I have heard reference to a period of an extension notice. I heard two years mentioned and some reservations expressed about that but I would like to know the position of that as far as the Appellant is concerned.

Inspector: Then I think 3.20 rehousing what we have been calling the protected tenants. Mr Sheppard makes point the need to rehouse in properties of equivalent quality. What I would like to know is whether there is also an obligation on terms of the location of where they would be re-housed.

Inspector: Finally on what the proposal would comprise. Question in terms of the makeup of tenure of new development. From planning application we see the intention of; 4 intermediate affordable dwellings, 7 social rented affordable dwellings and the question is what the other 59 would be there was reference yesterday to open market sale and open market rented. I dont think its actually specified anywhere but I would like assistance on that.

Inspector: Finally, Clarification on the s.21 notice period. Two references are normal minimum notice period would be two months. Because of current situation with covid19 it has been extended to 6 months. But the refence I have from Mr Sheppard refers to 3 months. Sorry for the shopping list at the start.

Mr White: Some of them points are point of law rather than planning.

Inspector: My main concern is that information gets to me.

(Inquiry adjourned until 10:10)

(connection issue)

Ms Bell: Sir further to the conversation with you and the council gave sufficient thought to providing the local lettings policy. The difficulty is it is the housing team not the planning team that have ownership of lettings policies. Its the housing team that feel this would be difficult and there are several reasons why. First, There is no registered provider at present indicated that they want to take on the units. My understanding is once a registered provider is on board there would then be consultation with the provider to define criteria for accepting or rejecting nominees or applicants for that housing. In this scenario the LA would have to approach providers with a local lettings policy in place. Its open to a provider to say we dont want to work to that criteria thats not the usual approach we cant do that. Difficulty also is that the housing team would have their own process on adopting any lettings policy. You heard about on the Emergency Lettings Policy that is currently in place that would be him and his team that would progress. In absence of any registered provider on board for these properties or any consensus on what the local lettings policy would entail and how it would operate it is not possible for the housing team to progress that to a formal policy that can be attached to 106.

Ms Bell: Difficulty, Mr Tinsdale speak about Council operate a needs based approach recall the banding criteria and how it sits in parrallel with the similar needs based assessment under emergency lettings policy. The council's approach is a needs based approach concern on housing department binding themselves to a Local Lettings Policy would cut across and be at odds with their usual approach which is a needs based approach. That is a further difficulty.

Ms Bell: Reference has been made to committee reports and minutes. In so far as it can assist you I can take you to October 7.02 important paragraphs are 4.3 and 4.4
4.3 reads seperate to the planning process the council has considered the potential for a local lettings policy etc. and the local lettings policy in order to mitigate identified detriment and give preference to these tenants. 4.4 local lettings policy would be taken forward by the councils housing team and is not something that can be dictated by planning legislation however it is recommended that an obligation is inserted in section 106 which seeks to ensure that the developer and the council work together to use reasonable endeavours to prevent discrimination in this manner. Local lettings policy was distinct from the planning team. Obligation best endeavours to work together to prevent discriminations.

Ms Bell: Captured in the minutes at 5.4.1 on 3rd October at page 2 mid way down: 6 bullets point up from the bottom of page 2 . Bullet reads: The council (seperate from the LPA) is considering a local lettings policy which would support existing residents to be rehoused. The council in the capacity as the housing department was considering the possibility. Its right the possibility was put before members. It wasn't suggested it should necesarily be dealt with by 106. The suggestion of 106 was broader obligation to work together and for the reasons I've explained the housing department have given careful consideration whether it was something that could be done for the reasons I've explained but there are real practical differences with progressing that idea further forward.

Inspector: Thank you Ms Bell for the explanation. Mr White do you want to comment?

Mr White: Yes I do, it would show too much restraint to not. I dont on behalf of the appellant accept the position of my learned friend. I don't blame her she is just taking instruction. The simple nub is that because of the needs based approach Leeds want to reserve their position because there might be those with greater need than the tenants on this estate. Thats the simple nub of it. They want to hold fire on that decision. I dont accept the real practical difficulties. Leeds are saying that when the time comes if they do need to house these residents they want them to form part of the criteria that forms across the city and they need to make a judgement of where they sit on that scale so to speak. I want to make submissions on that. I want to record that my client would have been very content to seek to overcome such difficulties and tried to have a local lettings policy in place so the 11 affordable houses so that priority was given to 11 AST tenants currently. Please record that and I will make submissions tomorrow along those lines. We dont accept anything Ms Bell has articulated. All of those are surmountable. Where there is a will there is a way and my client has a will and believes there is a way. The impediment is firmly at Leed's door because they are not willing to give priority to the tenants of the estate. Thats what I say on that. I do want to come back on the other point when Ms Wigley has spoken.

Ms Wigley: In this way, I haven't had opportunity to take instruction in relation to this issue. I suspect, my clients will be disappointed that there will not be any preference given to them on the estate to have opportunity of residing in the affordable housing but to be fair to Leeds, to be fair, I haven't looked at it in much detail yet but there would be a legal difficulty in providing any guarantees to residents on the estate because Leeds will of course have statutory duties in relation to homelessness and I suspect its not as simple as and whilst we would all like it to and my clients would I am sure would like it to be. The effect of the development is such that a number of people will be displaced and I suspect it may be outside of Leeds' power's to give guarantees to be given absolute priority to be rehoused in the affordable housing that is being provided. Thats the only comment I would like to make at this stage.

Mr White: I'm going to come back on that. Absolutely not, you can set criteria within the law and we have heard nothing from Leeds or Ms Wigley in law. A local lettings policy is a mechanism that is often utilised. A local lettings policy can have all sorts of criteria. Clearly one criteria is the distirbution and allocation of housing is subject to legal requirements but obviously there would be a consideration of how the existing tenants are dealt with. We will see what Ms Wigley says in closing about that or Ms Bell but I havent seen anything in law that supports. Ms Wigley has supported until just now a local lettings policy.

Ms Wigley: I'm not suggesting that a local lettings policy in itself is unlawful or that it wouldnt be welcome. All I am saying is that it wouldn't solve all the problems in any event because it wouldn't be any guarantee that the existing tenants wouldnt be rehoused because of course any legal duties of the council has in relation to homlessness and other matters.

Ms Bell: The note is clear. The matter still rests with the housing department. If permission is granted and affordable houses were there it would be open to the housing department at that point in time to have negotiations as they would ordinarily do with registered providers that were interested. Part of that would be to see if local lettings policy might be appropriate but I couldnt bind local housing providers to what they would or wouldn't do at that stage. It is to note sir the fact that it isnt a 106 agreement is not a once and forever decision because there will be a conversation between housing and a registered provider as to criteria in relation to them properties at some point in the relevant future.

Mr White: I want to deal with your points. Dr Buroni is on board. We have got in hand the first point in relation to amendments to the table. Can I ask for your agreement that we want clarity on that table you want the green to be amended that Dr Buroni and Mr Teasdale to use the Leeds survey, for all the reasons that Dr Buroni articulated yesterday and for all the reasons I put to Mr Teasdale. If you want it we will do it. In relation to the orange Dr Buroni he is happy to provide the information clearly debased talking to Mr Teasdale about the survey results to Leeds.

Mr White: In the green box of Mr Teasdale, I dont even know, you dont even know if Mr Teasdale has the necessary information with Ms Wigley's client in the green. We would be very nervous about doing the excercise on the green which applies to Mrs Readman survey. Are you happy then for it to apply just to the orange for the survey data that Leeds had from last year?

Inspector: What I want it to relate to is on a household basis. I think that only appears in the orange. You have attempted to do it in relation to individuals. What I am interested in is households that are moving as an entity.

Mr White: Perfect, that is clear then. Dr Buroni is now listening and Dr Buroni will make contact. I dont know if Ms Bell was able to make contact with Mr Teasdale over the adjournment.

Ms Bell: I was in conference with my solicitor. I have asked someone else in my team. I dont think they have been succesful yet but they will keep trying to make Mr Teasdale aware. I appreciate the nature of what you are asking for is household basis information and understand you are keen to Dr Buroni and Mr Teasdale agreeing matters and I see the debate around the Mrs Readman survey data is well ventilated but in terms of trying to reach an agreement to put before you the orange Leeds data is the less controversial data certainly. From my part we will do our best to contact Mr Teasdale and to engage with Dr Buroni about it.

Inspector: Mr Alford is sending an email to all parties setting out the categories I listed so that hoperfully there is no misunderstanding of what I was asking for.

Ms Bell: Thats very helpful sir thank you.

Mr White: Thats really helpful, there were 5 matters you asked Mr Sheppard.

Phasing Intention
The extended notice point
Intention of my clients to do is.
In relation to the assisted or regulated tenancies the test for the court in law is whether what is proposed is a suitable alternative accomodation. There is a degree of subjectivity for the court to be satisfied about. If we proposed 11 houses in Truro you might have difficulty persuading a court that is suitable alternative accomodation. There are parameters. The court would need to be satisfied that it made the test of suitable alternative accomodation. There is a gateway quantitative test suitable house to replace that which is lost and qualitative element as well which goes into the suitability question.

Inspector: Yes

Mr White: In relation to s.21 notice.

Inspector: Yes

Mr White: 5. The S.21 notice: the normal period is 2 months in law. The reference in Mr Sheppard's proof was to 3 months was accurate then. The first covid regulation had a period of 3 months there was then a subsequent coivd regulation which changed it to 6 months. There was two changes, then they changed to 6 months. Currently it is 6 months.

Inspector: Thank you.

Mr White: How do you want Mr Sheppard to deal with phasing intention, the extended notice and also the point about my clients intentions are if they got consent. Would you like to incorporate that in my examination-in-chief or deal with it right now?

Inspector: Im quite happy with that. If I feel I have queries I will ask them at appropriate time.

Mr White: Can I call Mr Sheppard.

Mr Sheppard: Would you want to answer them questions now Mr White or through the course. Unless that disturbs your equillibrium Mr Sheppard. Can we take up your proof please. There is one other plan you will need Sir, could you take up the location plan of P11451901 should be in A34.

Mr White: My estimate that we would be about an hour. Are you content for me to finish examination-in-chief and then break.

Inspector: That is fine we have already had a short break.

Mr White: You are Matthew Sheppard, you are director of Sheppard Planning which you founded in 2020.

Mr Sheppard:Thats correct.

Mr White: You have a bachelor science degree in Environmental Science and Geography also a Masters degree in urban and regional planning.

Mr Sheppard: correct

Mr White: You have been a member of RTPI for 20 years .

Mr Sheppard: That right

Mr White: Before starting Sheppard Planning. You were lead director in Yorkshire for Turleys which were a national planning consultancy. Whilst in their employment you setup and ran their environmental impact assessment team for a number of years.

Mr Sheppard: Thats correct.

Mr White: You have a broad experience in promoting land and development and securing planning permission for major planning proposals and as you set out in your proof you have secured a number of high profile developments across yorkshire and North across a range of sectors.

Mr Sheppard: Thats correct.

Mr White: I also think its fair to say when you were Director for Turleys, you worked out of their Leeds office.

Mr Sheppard: Thats right yeah.

Mr White: Have you spent your whole professional career working out of Leeds?

Mr Sheppard: I have yes.

Mr White: Are you a resident of Leeds.

Mr Sheppard: I am yes.

Mr Sheppard: I think there is a degree of familiarity with locality.

Mr White: You were instructed to represent the appellant following refusal of aplication in October 2019.

Mr Sheppard: Thats right.

Mr White: You also say in relation to what approach you have taken to your discussion negotiations and conduct with both the council and the rule 6 party.

Mr Sheppard: I have had a number of conversations with them. My general approach, I hope Mr Brooks and Mr Lynch would agree with this is I have generally been open and fair with both the parties. Main reason to take that approach is to try reach agreement on as many matters as we could to assist the examination of the case during this inquiry.

Mr White: As a result you got two Signed statements of common grounds.

Mr White: To be fair to Mr Lynch and Mr Brooks they took same approach as you did.

Mr Sheppard: I think thats fair yes.

Mr White: We will spend the majority of the examination in chief on matters in dispute but can I ask you to summarise where on day 7 where we are on agreement on matters.

Mr Sheppard: Same as the common ground. I'm sure everyone has read them. They set out fairly wide range of agreement on a number of matters particularly sir with the councils common ground. One factor that comes from focussing on the issues at hand. I thought it would be useful to draw some of that out.

Mr Sheppard: What we have agreed:

Mr Sheppard: The Principle of the development is acceptable, the housing use is appropriate for the future. There is so different views around the form that housing use should take. The principle of the housing use on this site is I think an agreed matter.

Mr Sheppard: Agreed that for the Appeal development scheme that the housing mix is appropriate.

Mr Sheppard: I think we are agreed that the development will accord with the policies on providing affordable housing. There has been some debate about topic of affordable housing. I think we have heard acceptance from all of the planning witnesses that the 11 affordable homes are the only homes that will meet the defintition in the NPPF.

Mr Sheppard: Both the Council and SaveOurHomes during the discussions in putting in the statement of common ground together they didnt have any big concerns in the proposed development. There was some discussion about garden sizes and that resulted in a few changes which resulted in that reason of refusal being withdrawn.

Mr Sheppard: Wide range of agreement on a number of detailed matters things like; Design Quality, Layout, Meeting Internal space standards, garden sizes, landscaping, ecology, Accessibility, highway safety, flood risk, contamination, coal mining legacy issues. There is an awful lot of agreement on whole topic areas where we havent touched on in this inquiry.

Mr Sheppard: There is some common ground on a number of the key issues which is recorded in the Statement of Common Ground.

Mr Sheppard: On the PSED which is the central part of the refusal, I think we now all accept that Landlord and Tenant law governs the rights of the tenants. Which is important for discussing the fallback position which I will no doubt come back to when we discuss more during examination in chief.

Mr Sheppard: I think the Council also accepted that for PSED that counterveiling factors can be taken into account.

Mr Sheppard: We also touched on climate change and I think we all accept that the proposed development will perform better than the current houses in terms of carbon savings. The debate has been focussed on the associated waste streams and the embodied carbon that comes from that demolition. Those are matters in debate.

Mr White: Can I ask you to slightly slow down please. I was always told to watch the inspectors pen but I can't quite do that.

Mr White: Just before you went onto Carbon.

Mr Sheppard: Was PSED was the first one I talked about. Countervailing factors can be taken into account.

Mr Sheppard: On heritage I think we are all agreed that the houses were non designated assets they have some significance resulting from their history.

Mr Sheppard: I think we all agreed that the refurbishment would alter the physical appearance of those houses as well as the structure. Both of which are important in understanding their significance as airey houses. The remaining issue is still there around historical and social associations. I hope thats a fair summary.

Mr Sheppard: On the development plan the planning witnesses have all agreed that there is compliance with a large number of policies in development plan. The issues we have left to debate are around the weighting and the approach adopted on those policies. Significant level of agreement. The effects on the community are the key things put forward to outweight the list I have just been through.

Mr White: In light of agreement. The fallback.

Mr White: Can we deal with the fallback. Every party to this inquiry accepts that there is a fallback the big debate to be had is the weight that all three planning witnesses give to it in development plan balance and the overall planning balance and that is a matter for the inspector.

Mr White: What you say and what weighting you give that exists in relation to the occupants of this community.

Mr Sheppard: It seems clear to me that the rights are wholly governed by the nature of the contractual relationship that exists. They are the real world issue that is being faced on that. To think about the weight we should give that is, that factors to consider are

Mr Sheppard: Firstly whether the fallback could actually be implemented and then Secondly how likely the fallback would be implemented if appeal is refused. That governs the weighting to it. 'Mr Tinsdale' I think he accepted that S.21 no fault eviction notices. Mr Tinsdale accepted that. I dont think it is being challenged by any of the other witnesses.

Mr Sheppard: The ability to serve a notice which results in an eviction at the moment in 6 months time clearly exists. How likely it is that the Appellant is to use those rights as attracted comment. Mr Brooks commented that notice hasnt been served yet. Mr Lynch wasnt that keen on the principle that the right existed but he did accept it was a reality.

Mr Sheppard: The appellant hasn't serve notice as yet as really there has been no need to do that. The residents are very welcome to stay in their houses whilst it is safe for them to do so. The appellants position on that has been that benefits the residents they get to keep their homes and the connections that they value. Being more commerical about it, it also benefits the appellant as it can collect rent during that period. There is a mutual benefit in leaving things as they are for as long as it is safe to do so.

Mr Sheppard:The issue we have got however is given the timescales we have got in the Dyson Report the need to serve notice on the tenants in the red houses is becoming more and more pressing and is becoming more pressing as time goes by and the amber tenants will be next on the list if you like. After receiving that advice from Dyson and having some timescales put to Pemberstone on how long that might take. I dont think any responsible landlord could ignore that advice. Its clear that those properties need strucutural intervention and the landlord has to do something.

Mr Sheppard:The appellant simply cannot allow the tenants to stay in the property if they have become structurally unsafe. It can definately happen and its very likely to happen in the short term particularly in light of the advice we have from the structural engineers. Really that is fundamentally important to understanding the harm that arises directly from this appeal. I think it should be given considerable weight in planning balance so its a significant material consideration which at the moment I dont think the other planning witnesses are giving a great deal of weight to.

Mr White: What do you say to the contention that is: Come on Mr Sheppard, your clients could have activated the notices and used their s21 powers for many months or even 2 or 3 years and they haven't and that can be mirrored into the future and they will take the same approach into the future.

Mr Sheppard: I have spoken with Pemberstone about this many times, I only got involved in this job when the application got refused. One of the first discussions we had was what do we do about this issue. The considered view that we came to was that there really wasnt any need, having being more into the planning side. They have significant advice from a well respected structural engineer in this field that says I'm sorry you have 12 months, 18 months or 2 years. They simply have to act on that advice. They then secured a second opinon of Mr Askew. Its incumbent on Pemberstone to not carry on I think we got to the option of not doing anything has been discounted by Pemberstone and everyone has accepted that that option does not work anymore purely because of this structural advice.

(Further updates from this session will be updated here in due course)

DAY 6: Pemberstone v. SaveOurHomesLS26

Jay Dee — Wed, 14 Oct 2020 08:28:56 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

Inspector: Just a couple of things before we get underway. Firstly the point raised from Mr White concerning how closing submissions should be dealt with and I said I’d give thought to that overnight.

Ms Bell: I’m in your hands. Appreciate that the closing statements can be made available by core documents list perhaps makes them accessible but also appreciate that people have been logging in to the inquiry process and they may want to see things draw to a conclusion as they otherwise would. Im in your hands to best assist you in the circumstances.

Ms Wigley: Sir, I take same position, I have no strong views. I can see both sides. I will do whatever best assists.

Inspector: Thank you. My own view as I said last night we should as closely as possible reflect a conventional inquiry. That leads me to suggest they should be read out in the usual way. Although I understand that documents are being made available there may be a delay in everybody who is following the inquiry getting access them to in that way. That confirms my view. I would like to see closing submissions read out. Obviously there is no point in reading lengthy extracts from supporting documentation, but in terms of the arguments in the submissions I would like them read out as usual please.

Mr White: For first time in this inquiry, your screen is very blurred and image of you is incomprehensible. Difficult to see your face.

Ms Wigley: I’m finding you pixelated Mr White.

Ms Bell: It is a little more blurry than usual sir.

(Advocates are having blurring issues on the visual appearances, inquiry adjourned to attempt to resolve the problems)

Inquiry adjourned until 09:55am

Inspector: Morning everyone I've had a message to say the Mr White's systems are now working.

Mr White: Thank you very much. As I raised it yesterday I take the exact same position as Ms Bell and Ms Wigley and I am delighted to have your view and we will all follow your protocol.

Mr White: Can we see where we are on Friday, I might see if we can have a 10am start on Friday and can I raise the cost position and what your preferred route would be on that. I hope you received from Ms Zia the costs via Mr Alford. The revised costs.

Inspector: I've got those.

Mr White: If you have a moment if you could cast your eyes over it as it is quite lengthy and I dont particularly want to read it out but I will if you would like me to. Obviously Ms Bell I think because she has had time is likely to put something in writing for you to consider. Please have a think on how you would like to do the cost session.

Inspector: Yes, if there is time, I would like to do it in the same way, but if short of time on Friday and appreciate the point of 10am start I am less concerned to doing that verbally. Inclined that that part could be done in writing.

Ms Bell: Written response is in hand sir.

Inspector: Good, with matters being dealt with in that way there would be opportunity for both the application and the written response to go on the public access website so that people are aware of exactly what is being said by both parties at that stage of the inquiry.

Ms Bell: I'm sure that could be done sir, Yes.

Inspector: Good

Mr White: Can I raise just two other matters. 1. In relation to the 106, can I via you give Ms Bell a nudge to Mr Hills, after our debate about the local lettings policy we are waiting for Leeds to formally reach a view and to tell us what their position is on that. Obviouslly we want to get the excuted verison to you by close of play today or first thing tomorrow so we can deal with it tomorrow afternoon, in case there is further discussion needed.

Inspector: Ms Bell, you have heard that

Ms Bell: I heard and understood and relay that across.

Inspector: Id like to be updated tomorrow on how things stand on that.

Mr White: One other thing for Ms Wigley, do you recall I asked Mr Lawton in his appendix 1, if he could give some fat on the bone to the number of properties and cost. He did come back, orally, the next day and give evidence to two I think. If that is the extent of the information, but it may be subject to confidentiality but could Ms Wigley confirm, whether Mr Lawton's evidence is sticking or twising on that. If sticking so be it. I am not making a point. I just want to know if there is further information.

Ms Wigley: My understanding is that there isn't going to be any further information. I will check that if I can get in touch with them as Mr Lawton and Mr Rogers are busy working elsewhere now. I will see if I can get anything we can immediately provide but I suspect not.

Dr Buroni - (Evidence-in-Chief for Pemberstone)

Inspector: It is your witness Dr Buroni.

Mr White: Order to Documents to save time. 1. Dr Buroni evidence, RPS badge making complex easy 2. Mr Teasdale proof, his appendices and his rebutal. 3. Mr Teasdale's note entitled supplementary note with blue orange and green table we debated at some length. I think that is the evidence that you need.

Mr White: I'd like to do follow the lead as Ms Bell and Ms Wigley did so beautifuly with their witnesses. Can take their evidence as read and I've got supplementary questions which will cover the evidence of Dr Buroni. If at the end if you feel I've left anything out I will get him to read his summary proof.

Inspector: Content to continue in that way.

Mr White: Formally introduce you to the inquiry. You are Dr Andrew Buroni, you are a Director of RPS, you are a lead and planning environmental consultancy that has 5000 staff in 125 countries.

Dr Buroni: Thats correct.

Mr White: You personally you effectively have a degree in Biological / Biomedical Sciences.

Thats correct.

You did a Masters in Environmental Impact assessment at Brighton University. You then were offered a PhD at Brighton University and you selected research Health and Equality impact assessments within the regulatory planning process.

Dr Buroni: Yes.

Mr White: Part of PhD you did formal training in environmental health impact assesment. Work in Caribean Environmental Health Institute and Health Canada.

Dr Buroni: Thats right

Mr White: On completion of PhD you were recruited by ERM who I'm sure most of us have heard. You led the first fully integrative health and inequality impact assestment team within the UK on mainstream planning and environmental consultancy.

Dr Buroni: Yes.

Mr White: During that you lead quality impact assessments on the the London Olympic bid in 2012.

Dr Buroni: The bid was prior to 2012 but yes.

Mr White: You're absolutely right I remember being in Trafalgar Square in 2005 when the win was announced. You did that work in the early 2000s, you also worked on crossrail at Stanstead, and you completed in 2006 your PhD, and its your belief that you are one of two people with a PhD on International Health Impact Assessment Methods and Best Practice.

Dr Buroni: To my knowledge, yes.

Mr White: Your also a fellow at the Royal Society of Medicine and a fellow at the Royal Society of Public Health.

Dr Buroni: Yes

Mr White: You also have HIA framework advisor to Public Health England, and offer health and equality support on major infrastructure projects, you are also are public health technical advisor to the Eden Environmental protection agency in Ireland.

Dr Buroni: Yes

Mr White: You are also the health and equality technical advisor to Public Health Wales and the Wales HIA support unit. What does HIA stand for?

Dr Buroni: Health Impact Assessment Support Unit they develop the HIA and equality guidance for Wales.

Mr White: You also sit as independent technical advisor to their policy and international health and the WHO collaborating centre on investment for health and well-being.

Dr Buroni: Thats correct yes.

Mr White: You are also tempoary advisor to WHO on the health effects of Waste Management.

Dr Buroni: Yes.

Mr White: Finally, you also sit on the Institute of Environmental management assessment health and EIA working group.

Dr Buroni: Yes thats correct.

Mr White: Finally, last week on Thursday you were giving evidence in relation to the DCO relating to Sizewell the Nuclear Power project were you?

Dr Buroni: Thats correct we are finishing the DCO now and agreeing matters relevant to the issues of a specific hearing.

Mr White: Very breiefly at 2.1.2a you formally were instructed and gave advice to Ms Bell's clients the local planning authority you carried out and assisted in an health and equality impact assessment for the Leeds Core Strategy.

Dr Buroni: That was whilst I was with ERM so its a fair few years back but yes.

Mr White: OK, You list there your full experience. Before we look at particulars of this case my second topic I want to ask about

Inspector: Sorry to interrupt at this stage, but I want to understand the scope of Dr Buroni's evidence. There are a nunber of points: 2.3.1 and 4.1.5 and 5.1 where he appears to be considering the overall planning balance and I just want to check whether that is or is not his intention because that would seem to be a matter for Mr Sheppard.

Mr White: 100% and I said and made this criticism of Mr Teasdale in that it cannot be for Dr Buroni, Mr Teasdale or anyone else apart from Sheppard, Lynch or Brooks to reach a view on the overall planning balance. So sir any reference you infer or expressly says that Dr Buroni is reaching a view on planning balance is obviously erroneous and inappropriate.

Dr Buroni: May I add the balance I refer to is the equality balance, what are the issues, what are the opportunities and what the distribution of both is and I do apologise if that wasn't clear.

Mr White: Can we just take up Mr Teasdale appendices Appendix 1 had section 149. Dr Buroni can I just take the point, do say if you need time to get anything but I think there is common ground that the statement of common ground from the Rule 6 party and the LPA that the 149 duty is engaged in this case and the inspector is effectively in law the public authority that must have due regard to little 1 a) b) and c).

Dr Buroni: Agree, wholeheartedly.

Mr White: Thank you so we know the inspector must have due regard, and we know as we discussed with Mr Teasdale last week the requirements under a) to eliminate discrimination, harrassment, victimisation, and any other conduct prohibited by the act. Advance the equality of opportunity between persons who share relevant protected characteristics and persons that don't and foster good relations between those who have protected characteristics and persons who do not share it. There is a lot of agreement between you and Mr Teasdale as to what is a relevant protected characteristic as set out in section 149,7. No disagreement on the starting point, there are in particular in this case age and disability.

Dr Buroni: They were they key characteristics identified by the planning officers during their screening and scoping excercise. Yes. I think all parties can agree they are the key issues.

Mr White: Also I think we can also agree that there is no dispute that there are those who have protected characteristics on the appeal site the debate will then go on to the extent and whether the development effectively what effect it has on them and we come on to deal with that in a moment. In practice and in context of planning what do you say about the 149 duty?

Dr Buroni: Article 149 of the 2010 Equality Act is one of due regard, public authorities in excercise of their functon have to consider what the issues, opportunies and distribution of both are specifically to eliminate discrimination, advance equality of opportunity and to foster good relations between people with protected characteristics and those that don't.

Mr White: In that context, there is a mechanism (which you have in the appendices) of an equality impact assessment. All of us are familiar with environmental impact assessment which took lead from European Legislation and transposed into British law but what is an equality impact assessment?

Dr Buroni: It's a loose term, it is given to the process where the public sector of equality duty is tested to form that due regard. There is no prescribed format to this, it is tailored to the decision making process intended to form so strategic and project level would look different. They rarely include all the information that forms the conclusion as its often very sensitive if released into the public domain can run a risk of discrimination.

Mr White: In this case, the Inspector has got; your work, Mr Teasdale's work, work carried out by Cindy Readman, that Mr Teasdale has got and hes got the work that Leeds did in consideration of the planning application.

Mr White: First want to ask you on the basis of the information that the inspector has got. In your view is there an adequate material or not for the inspector to have due regard to the section 149 duty?

Dr Buroni: Yes there is sufficient information as you said the Leeds City Council planning officers reports are the primary source of information, the panel minutes provide additional context from recollection. Mr Teasdale's proof is in and Mr Brooks also addresses the equality benefits and the balance to be addressed. There may be some elements in there as well and my own proof on top of that.

Inspector: I have Cindy Readmans work only to the extent I have it from Mr Teasdale.

Mr White: Absolutely right. Completely fair. I think to be fair to Mr Teasdale he attributed it and was very clear about where he got that information from. I hope Ms Bell won't take offence at this but Mr Teasdale's views on the impact was blended on the information provided by Leeds and a degree of Dr Buroni discssion in August and also the Cindy Readman material. Thankyou.

Mr White: Can we take up Leeds CD702, Minutes for the 3rd October.

Mr White: Lets go through chonology here. Lets start our journey with Mr Teasdale's appendix 2,

Dr Buroni: I have that.

Mr White: Follow chronology. Application was made in Oct 2017, prior to its determination at some stage prior to January 2019, the local planning authority was made aware, became aware or were advised that S.149 applied to that application. Is that fair?

Dr Buroni: Yes.

Mr White: What their response to that was on the 22nd January as we understand it they wrote the letter that is at Mr Teasdale appendices (appendix 2) as we can see they wrote the letter and they sought the provision of that information which effectively was as they said was an equality monitoring form.

Buroni: That is right

We see the Leeds monitoring form required certain questions. Having done this yourself I am looking at Equality Monitoring Form what are your views that it was adequate or not? To inform a 149 judgment.

Dr Buroni: Whenever you do an equality impact assessment its very difficult not to put leading questions to people. In this case they have done a commendable job they have covered all relevant protected characteristics in a way that doesnt prompt. It would be opinions and self determined characteristics. They include wider information and have asked about health conditions as well. Under disability.

Mr White: We note in second sentence in para 2. Before council makes decision we will ensure that impact on the residents particularly those falling in one or two or more charateristics and characteristics protected by legislation, questions relevant to Leeds. Is it good practice or not to tell those why it is being collated or not?

Dr Buroni: Yes it is.

White: 30th May - Appendix 1 at section 9. Main Issues. 1. Principle development. 1b. Public Sector Equality Duty. ("PSED") We note that the council put that duty in the principle development. Section starts at 10.7

Dr Buroni: Not to detract your flow its already on page one of their report. They already highlight equality and diversity

Mr White: fair point, first page theres a box on first page and we note the members have identified two of the three equality and diversity has a cross and community cohesion has a cross. Do you see those?

Inspector: Yes Mr White.

White: back to 10.7. Members told to comply with PSED. 10.8 recites section 1. 10.9 recites the section that deals with little b. from the act.

White: Rather than go through this in turn we note there is reference to what look at 10.17 the members are told about the residents with protected characteristics. Total properties 70, number of residents 34. We then see for example 10.18 reference to tenancy the Assured Shorthold Tenancies ("ASTs"), and at 10.19 in considering those with Protected Characteristics would be disadvantaged its necessary to know what impact of the approval of the development would have. Is that correct or incorrect?

Dr Buroni: Perfectly correct.

Mr White: Those on assured or regualted tenancies the impact would be limited as they would be rehomed to suitable accomodation on site. Is that a consideration in your judgment is material or not in relation to section 149.

Dr Buroni: I believe its material, they have identified the mode of action on the household and they identified that the only modifier is tenancy type and they explored that further.

Mr White: They then switch to ASTs the table shows 21 residents in ASTs. They say loss of existing home and need to find alternative accomodation. Discussion on appropriateness of accomodation in Rothwell at 10.20 and impacts on service provisions on school and employment . Impacts faced by all occupants but disabled and elderly residents in particular impact maybe greater if existing provision can not be transferred. 10.21 make reference to right to ASTs is limited and subject to the end of a fixed term period can be subject to eviction proceedings. In your professional judgment, as officers for Leeds is it relevant to look at nature of tenure or not?

Dr Buroni: It is.

Mr White: Currently no certainty of long term stability and can be served notice regardless of whether planning permission is granted. Tenants will be aware of these rights when entering into tenancy agreement. Notwithstanding the housing team as held meetings to provide advice on options available to them. Team has indicated seek nomination rights for 11 affordable houses that are required as this development. Secured by 106 agreement.

Mr White: The team I assume (Housing Services Team) would seek nomination rights for affordable housing for 106.

Dr Buroni: Thats my interpretation sir.

Mr White: At 10.22 we see when considering impact of those with Protected Characteristics it is considered that it is not the development rather it is the nature of the tenancy. Do you remember Mr Teasdale, I'm paraphrasing if unfair Ms Bell will intervene. Debate for inspector to resolve on the effect of the tenacy on the impact assessment. What is your judgment on this as a material consideration under 149 or not.

Dr Buroni: As I said previously the mode of action is on the household. It is the tenancy type that modifies how a community or resident might be impacted. Those with assured or regulated have more protection than the AST. It is the principle behind why planning officers when beyond planning mitigation to protect the AST.

Mr White: In May we see 10.7-10.24 in light of what Mr Teasdale says about the survey and the approach. What is your judgment on level of scrutiny that was put before members in May 2019.

Dr Buroni: It is orally to be commended. They identified, they screened the right protected characteristics, they put out a methodology? and escalated that to investigate local community concerns and issues and opportunities and the distribution of those. They further explored distribution of that effect by tenure. They sought mitigation to address that which went beyond planning and looked into tenancy legislation to address the impact of AST members who had least protection. They actively worked with those communities to help and prepare for those issues. I can only commend the planning officers for their efforts and the information that they provided for due regard to be taken.

Mr White: October report 3rd october. South and West panels? Take up Section 4. PSED: Impact on the community and mitigation measures proposed... Reasonably assessed and has discharged its duty effectively. Note at 4.3 Council has considered potential for a local lettings policy which would secure additional 11 families being housed in affordale units which would be additional to the 12 units provided for regulated and assured tenants. Local lettings policy would in order to mitigate identified issues of those with protected characteristics give preference to these tenants. Recommended at 4.4 obligation is inserted to ensure developers and council work together to prevent discrimination. That was view of officers at that time. Under PSED. 4.6 addresses accessibility and adaptabilty. What is your view on accessibility on adaptability on the proposed houses?

Dr Buroni: There is going to be 51% beating accessibility and adaptability dwelling standards. I believe 3% will share user dwellings. In terms of advancing opportunities for equality it goes a long way to doing that. Its in the common statement of common ground with Leeds city council. This provision far exceeds what is currently there. Its not replacement of current housing its bringing it to current standards in terms of accessibility and adaptability and the ability to live independent lives for longer. A whole series of steps of housing renewal underlying the Leeds housing strategy.

Mr White: At 4.9 construction phase have not been settled. Phase 1. Construction of 12 dwellings in order to faciliate rehoming existing regulated and assured tenants. Further protect community cohesion of existing tentants. If you dont know the answer say so but Ms Wigley in opening made suggestion that potentially those with protected characteristics might have to move twice. Is that the intention of the developers or not at 4.9 bullet 1.

Dr Buroni: No 4.9 is very much there to minimise disruption to existing tenants.

Mr White: At 4.11 developers also propose to grant each AST a two year fixed term tenancy from point at which planning permission is granted. That was the offer at that time and allows new accomodation to be found. AST tenants are not being disadvantaged as part of the planning process and it could be a condition it is said.

Mr White: Benefits for the tenants are being put in the balance on PSED. N42 compliance. Accessible and adaptable and wheelchair accessible compliant. In your judgment was it right to bring them matters to the officers in the context of the PSED?

Dr Buroni: Yes, wholeheartedly it goes a long way to advancing opportunities for equality it goes someway to address Mrs Readmans presented yesterday. No doubt that warmer and dryer homes would contribute to increased health benefits as regards respiratory and cardio-vascular disease. Where you have existing conditions it would help prevent exacerbation of those.

Mr White: 4.17 again at second sentence local lettings policy if approved would provide modern quality homes for those residents deemed to be a priority i.e the ASTs with protected characteristics. Does it not? What is your view on that?

Dr Buroni: Priority for that would fall to Leeds to define but I would hazard in this case they would prioritise those with protected characteristics.

Mr White: 4.18 LPA has fully considered the needs of residents living on this estate and given due regard to the application with regard to equality. It is a material planning consideration as it relates to members duty to have regard to the PSED as it provides important information relating to mitigating the impact on those with protected characteristics relating to age and disability. Having looked at the two extracts the information they are based upon what is your overall characterisation how Leeds as the public authority under 149 discharged or did not their duty?

Dr Buroni: In terms of discharge. The material in front of me is excellent. The process was followed. In terms of discharging the duty all of this information was ignored.

Mr White: Why do you say that?

Dr Buroni: Because the sole reason for refusal was on equality matters that were never substantiated. This material was put to one side. The reason for refusal was given. No supporting evidence was put in place. No evidence before a party that there has been an equality impact it's still the case now. This information should have been heeded, it wasn't,and thats why I'm bold to say the panel failed to discharge the duty.

Mr White: Lets move to look at what is before this inspector. The chronology and after July 2020 when LPA were instructing a witness to give evidence on PSED there was communication between the two of you. Is that fair or not?

Dr Buroni: Between myself and Mr Teasdale. Yes.

Mr White: Briefly explain nature of engagement.

Dr Buroni: The equality impact aassesment process it does use a lot of sensitive information. The full excercise is rarely captured in full or presented in public domain as you run the risk of idnetifying households with a protected characteristic which could lead to discrimination. It was essential to me to make sure we were using the same data. The data was provided by Leeds City Council so I took it as fact. We had a call.

Mr White: Lets take this slowly as it's important. Once instructed for the appeal. Did you ask Leeds to provide further and better particulars of the Jan 19 survey.

Dr Buroni: I believe we did a Freedom of Information request for the survey, equality impact assessment and any data relevant to this case.

Mr White: Leeds did provide this. You had baseline information. In August you made contact with Mr Teasdale for what purpose?

Dr Buroni: To agree what data would be put forward in the public inquiry. We wanted to make sure it didnt breach the equality act itself or breach any confidential agreement that Leeds had made with people who provided that information.

Mr White: You made contact with Mr Teasdale. What was the outcome of them conversations?

Dr Buroni: We found a discrepancy, we did a spot check chose a row and column. Asked what data he had and what I had, it didnt correspond. He also had more rows and columns than I had. I took it at the time that I may have had a redacted version of the Leeds. I needed to get to the bottom of it and I expressed this to Mr Teasdale. We went back and forth on emails. We went back to Leeds. Leeds confirmed the data provided to us was the only data and the only data before Mr Teasdale. We ccd Mr Teasdale and Mr Brooks in all of this. Having not been able to get to the bottom of the discrepancy. We had no basis to question the information we had and we proceeded on the basis that I had a slightly redacted version and if it was redacted the numbers would be the same but some of the sensitive information would have been filtered out. That wasnt the case.

Mr White: As we know from evidence last week what obviously happened Mr Teasdale was also using new information provided by Cindy Readman. Inspector must make a judgment on that information. On what you heard from Mr Teasdale. Whats your judgment on the weighting of the new survey material and what he should give to that?

Dr Buroni: The weighting is for the Inspector. In terms of the information that was within there. Bare in mind you had a robust equality survey and assesment done by independent impartial expert the planning officer. There was no need to supplement it with a general survey. We havent seen the survey methodology, we havent seen the survey questionnaire, we havent seen survey findings, the analysis or conclusions drawn, we have no notes from verbal accounts taken. No notes how you took an equality impact assessment survey and incorporate a general community survey within it. No information on how the numbers were summed up and there was summing up going on there. No need to update the survey and certainly not in this fashion.

Mr White: What about the argument put to you. You got the survey around the 10th September you didnt pick up the phone and say whats going on? Did Mr Teasdale ever inform you he had additonal information from the Rule 6 party on protected characteristics?

Dr Buroni: No

Mr White: 2nd point, Why when you saw that Mr Teasdale clearly had additional material in his proof why didnt you get on the phone and ask him for it?

Dr Buroni: At that point it was too late. There was no information within his proof of evidence so doing a rebuttal or having a formal conversation about it didnt seem of value. Its worth bearing in mind I gave him the basis for my entire proof of evidence on 20th August on that call. Following email I also shared the tenancy type data and current vacancies to make sure we were using the same data. In principal there really was no point in an additional call.

Mr White: In light of what you see has the inspector now got the material to have due regard to 149?

Dr Buroni: Yes. ...Outline the evidence I would point to: Leeds City Council officer reports, The panel minutes, Mr Teasdale proof, Mr Brooks. The two are needed as Mr Teasdale on p.2 he says only considers the impacts, no benefits. The benefits are considered by Mr Brooks. You have my own proof. Nothing has been provided with regards Mrs Readman and survey results. It would have to fall back to verbal account of Mr Teasdale proof.

Mr White: Inspector identified 3 references to the benefits. Are you considering the benefits in context of 149 or wider planning balance.

Dr Buroni: Its in respect to equality benefits, so 149.

Mr White: You have been doing this for some years. Is it appropriate in an impact assessment to only look at the impacts? Or is it considered appropriate to consider the benefits of a proposal when doing an impact assessment.

Dr Buroni: The underlying ethos of Equality Act, Mr Teasdale said it was substance, rigour, and of open mind. Let me flip it round, If you only consider the benefits of a project and you ignore the negative impacts how robust is that? You are actively discriminating you are hiding or masking one aspect of the project. You need to consider both, the issues the opportunites and distribution of both. If you fail to do that you are not providing an equality impact assessment.

Mr White: If you are right. In context of 149, what are the effects now the inspector has to consider in granting permission. What prejudice or consequence would it have in your judgment on those with protected characteristics.

Dr Buroni: There is no discrimination, the key mode of action is the housing is coming to the end of its life span. It is blind to discrimination. It does not select or target against any particular characteristic. It is soley a feature of the need for structural intervention.

Mr White: Can I just ask you briefly to look at your appendix integrated health and equality impact assessment your appendix a. page 1.

Mr White: The report evolved over 4 months, page 2 structure, methodology, project profile, health and equality baseline, equality survey analysis, health and equality appraisal. How subjective is that structure or is it an objective one you generally follow irrespective of the project.

Dr Buroni: Its a generic approach to both health and equality assessment. To talk you through it. Project Profile is to get feel for what is proposed. Key health and equality determinants. A screening stage a quick and dirty excercise to work out what issues and opportunities are and any distribution that might lead to disproportionate outcome. From there you can define what baseline you look at. What supporting evidence base you need. You go from a wide focus to an ever decreasing tight focus. Its the basis to ensuring you have a robust but proportionate assessment. The health and equalities baseline is set in the context of understanding local circumstnace priority and need. Start with broad focus, community and wide community often compare to local, regional and national trends, then you look at survey analysis, extension of baseline where we looked at broad community we now look at individual households, as mentioned the survey had not only self identifed protected characteristics, but existing health conditions, burdens of poor health, so we knew individual households and tenants by tenancy type, health burden and whether they considered if they have identified protected characteristics or not. You cannot get more detailed than that.

Mr White: What about Dr Buroni your 5.3.3 we see a total of 72 responses from 37 households?

Dr Buroni: Yes

Mr White: To show equality with Mr Teasdale, there are 56 households occupied. whether it be 19-23 households that didnt respond. What should the inspector note about that? There is not a complete survey across the whole site.

Dr Buroni: Its rare you get a 100% response. I've never come across 100% response. Whilst you can do your best to encourage participation. There will always be people that don't respond. The information we have from the households provided is sufficient to inform equalities assesment.

Mr White: Is there a relationship or not? Do you remember the letter that Leeds sent. Is there any relationship between what the letter sent on 22nd Jan on those with protected characteristics and your judgment. More likely or less likely to submit the survey or do you have no idea on that?

Dr Buroni: Tried to be as neutral as they can be but yes if you send an equality survey out it tends to prime people with a protected characteristic to respond.

Mr White: Health determinant, social, environmental, economic determinant you look at impact, then duration and distribution. Is that correct?

Dr Buroni: Yes

Mr White: You take it forward to 6.2 health and equality determinant at various factors and what you did was look at 3 options, proposed development a do something and a do nothing.

Dr Buroni: That correct.

Mr White: The do something was on the basis of what kind of refurbishment.

Dr Buroni: Erm, It was the encasement option, I forgot the name of the term now Strat, Structherm solution.

Mr White: In terms of colours I imagine if your logical red is a bad thing, green is good thing and orange is neutral. Is that right?

Dr Buroni: Thats right. The key is at the bottom.

Mr White: The darker green you are the more positive, light green moderate, orange is not neutral moderate negative and red is serious negative.

Dr Buroni: Thats right

Mr White: Taking 6.2 as a whole what was your overall conclusion.

Dr Buroni: In terms of 7.1 demography during construction the proposed development results in displacement of the community. It is noted as adverse impact, significant adverse impact. Do minimum or do nothing is of lesser scale largely because duratio and the rate of displacement will be different but it will occur. In all cases the displacement of the community is there. It's picked up in the operational phase. Operation would provide the means to actually build a community. The do minimum and do nothing would see it continue to deteriorate. It looks at each of those health determinants and it provides an overall balance. You can see the operational phase is all beneficial other than housing for do minimum and do nothing and change in displacement of community for the do minimum and do nothing. On balance in equality terms the proposed project offers the means to advance opportunity far greater than the other two options.

Mr White: You have advantage of having heard and read all the material what in your judgment should be the inspector's conclusion in terms of 149? What is your view?

Dr Buroni: It is for the inspector to come to his judgement but there has been no evidence from any party to establish an equality impact. None whatsoever. Planning officers confirm no equality impact to which I validated through my excercise. Statement of common ground says application offers more affordable, accessible and adaptable homes pertinent to elderly and disabled. Demonstrates the opportunity to advance equality. The do minimum do nothing would be the same adverse effects all be it at a slower rate but absent any of the benefits associated to new housing for current standards for current and future tenants. That is the sum I believe.

Mr White: Can we just end on 149 and go back to Mr Teasdale's appendix 1 please?

Mr White: In your judgement if the inspector was to grant consent would it effectively cause discrimination, harrassment, victimisation or any other conduct that is prohibited under this act in your view?

Dr Buroni: No, no evidence has been put before us for that and Mr Teasdale couldnt provide any evidence of discrimination or harrassment either?

Mr White: Secondly, if the inspector is minded to grant consent, would it not advance equality of opportunity between those who have a protected characteristic and those who dont have it in your view?

Dr Buroni: Yes, 51% of the housing is more adaptable more accessible, you have wheelchair access. The statement of common ground again confirms that this is over and above current provision and only and improvement which protected characteristics would wholeheartedly benefit.

Mr White: Lastly, what in your judgment would the grant of consent foster, or not foster good relations between those on the estate who have a protected characteristic and those that don't?

Dr Buroni: Its an inclusive design, there is no discrimination so it would support and foster that inclusivity.

Mr White: Let me ask you this. How does this planning proposal distinguish between those in the survey, whichever survey you take, how does it distinguish in impact between those with a protected characteristic and those without a protected characteristic.

Dr Buroni: It doesn't. The impact is the same regardless of protected characteristic.

Mr White: Thank you that is my evidence in chief.

Inspector: Now is a good moment for the mid morning break. Can I check one thing which may be something Dr Buroni may come back to after the break. Appendix a, Table 5.1 summary of equality results and a version of that table is I think at 3.1 at page 9 in Dr Buroni's proof. Looking at the tables there are some differences in the figures in the tables, may be a simple explanation for it, only small differences but the tables are not exactly the same.

Mr White: I can see that e.g disabled 9 at table 3.1 and 12 in appendices.

Inspector: No that is not the point Mr White. Extra set. Those are by respondents. I'm looking at responses by households which brought forward to proof. If you stay with disabled. Percentage of 45% in 3.1 and 42% with the same number in Table 5.1. I think there are at least 5 differences in the tables.

Dr Buroni: I will have a look at that over the break.

Inspector: Please.

(Inquiry adjourned to resume at 11:35)

Judicial Domicide would like to thank SaveOurHomesLS26 for granting permission to us to use the feature photo.

If you would like to donate to the SaveOurHomesLS26 campaign please click here

DAY 5: Pemberstone v. SaveOurHomesLS26

Jay Dee — Tue, 13 Oct 2020 12:24:57 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

Mrs Readman - (Evidence-In-Chief for @SaveOurHomesLS26)

Mrs Readman: My husband was vice chair and local secretary of rugby club.

Ms Wigley: How well do you know by name?

Mrs Readman: A few up on Sugar Hill Close. A few views? on people you know? Irene aged 83, raise family here and ?

I’ve spoken to her a number of times but yes recently yes she’s 83, she moved here 61 years ago. Her house is full of memories. She made improvements to fireplace. She told me story of her husband who died of cancer. He was sent home and he stayed downstairs and had view of the tree that they had both planted.

They all know each other. Susan who has been on estate 12 years and Hazel who has been there 16 years.

Both are good friends of mine and so yes I do speak regularly to them.

It would be devastating for them as Susan being on her own. Hazel works in Wakefield and has said she may have to give up work if she was moved further away. Can go for walks in the local area they feel secure, they feel safe. They have met so many people and all so friendly.

Ms Wigley: Your house is classified as a red house in classification. You know about that classification. Exp. of how you live in the house and have you noticed any problems with it? Any problems that might indicate structural problems or that it might fall down? How do you feel about living it that house thats classified Red?

Mrs Readman: It was a shock actually. As far as im concerned I'm not a structural engineer but as far as we are concerned there is nothing wrong with this house. There are no cracks in the wall, its not moving, there have been no issues with damp in the house. No issues in the entire time we’ve been leaving here. The only problems we have ever had are with maintenance issues. We’ve had some windows replaced with double glazing. To be quiet honest it was a feat getting that done. We have said before I had to got a Dr’s letter for my sons Asthma and that was the only way we could get double glazing put in. Since the time we got the double glazing put in there is no drafts there’s nothing. It's a lovely house to live in its spacious. but no the whole time we have been here there has been no issues other than general maintenance issues.

Ms Wigley: Dr Buroni evidence at 1.2.2 - in his summary proof which reflects his main proof but for our purposes his summary is sufficient. Reads out the statement - Underlying issue that existing housing inequality that has resulted in disproportionate number of the most vulnerable people in the community living in sub poor standard energy inefficient housing that then compounds the existing burdens of poor health and propogates inequality. Mrs Readman. How much or how little does this chime with you and those others on the estate that you know?

Mrs Readman: Very little to be honest. When I read this report honestly it made me feel sick. As I have said before a lot of people who moved here have moved for different reasons, family problems, financial problems ,but they have moved here and they have been made to feel welcome. Its a community, it a close community and they feel safe here. They haven’t had any issues issues like that. To say they exasperated…The only thing that has exasperated the poor health of people and the anxiety and stress of people here, is the last three years, where they are thinking they might lose their homes that they love. Thats the only thing that has caused any stress and anxiety in the community, as far as I know.

Ms Wigley: Does anyone have a feeling that their housing is less good than the other housing in another area. Or less equal?

Mrs Readman: Not that anyone has ever reported to me.

Mrs Readman: No we only ever had issues with maintenance been main issue with landlord there has been problems with that but that’s nothing to do with type of housing its to do with poor maintenance by the landlord to be perfectly honest.

Ms Wigley: in 1.2.2 going on he says the proposed project is not the cause of such inequality that seeks to address the underlying issue by improving the housing stock quality and adaptability and affordability over what can be achieved by do minimum or a do nothing scenario. How do you feel about what he says there that the redevelopment will basically address underlying issues of inequality? How do you react to that?

Mrs Readman: Maybe its fine for people on regulated tenancies that will be offered a house. It will be absolutely fine for the people who move into the brand spanking new houses and can afford to buy a house for £250,000 pounds. But for the rest of us, well yeah it really will improve our life (sarcastic tone) because we will be out on the street and we will be homeless. I don’t know how that will improve our lives by building new houses that we are not going to be allowed to move into. We will be in temporary accommodation waiting two years for a council house. How is that going to improve our quality of life? I don’t see how that will improve anyones health or life.

Ms Wigley: Sorry I haven’t got reference to hand but I know I’ve read you are a teaching assistant in a local school. You’re also a parent. You’ve explained your children were involved in local rugby club. What is your feeling particularly on current position as teaching assistant in local school as to the effect on the proposed redevelopment of the estate on the health and wellbeing on the children in the local area?

Mrs Readman: I’ve seen effect in one particular child which Mr Teasdale has previously mentioned and it was a child who was in my class at that time. She lives on the estate with her family. She knows that I live here. And she said I might have to move school soon because they are going to pull my house down and we won’t have anywhere to live we will have to move house so ill have to move schools. She’s the type of child that doesn’t make friends easily. Very shy, very insecure and for her to have to do that it would be massive, absolutely massive. I can say that for nearly all the children that live here. You only have to walk round on a nice day, the children are all out playing together. My children used to do it when they were young. They all used to play out on the street or out the fields at the back, we never had any issues with it. We knew that people would look out for them or if anything happened one of the neighbours would come get us. Thats what is happening again with the next generation of children that are here. They all play out together. They absolutely love being here. If they have to move schools and had to move houses they would be separated from all of that. Its a big thing for children moving schools. Got to make new friends, got to fit in in a new place and it’s so hard for them.

Ms Wigley, yeah, thank you very much.

Ms Wigley: I notice Mr Teasdale in appendices. I have seen your face in a few of them. Its only fair to ask you. Appendix 6 - evidence of community action website. Quite a lot of pages in there. Do you have hardcopy page 24 - 70.

Inspector: yes Ms Wigley I do.

Ms Wigley: 24-70 big photo on top half and residents action banner and open house happy homes. Heritage open day. Ms Readman do you have that? Can you explain what that is all about please and how often that’s happened.

Mrs Readman: Its happened for last two years but would have happened this year if hadn’t of been for covid. We were contacted by Leeds Civic Trust, and happened for the last two years and we were open for one day of the weekend and we were visited by many people during the day. Some interested in the mining estate. Some interested in how it was laid out. Some used to live here and come to reminisce. It was a lovely day and its happened for the last two years. We also had a visit from 20th century society. It was quite funny to see two coach loads of people turn up to come round here. They had a good look round, invited into peoples homes and gardens. It was lovely. They had a good look around the homes. Website, I’m involved a little bit but it is mainly run by Hazell and Jesica field. I am involved in it a bit but mainly them. Christmas events, and held social events there. Christmas Party last year: Santa came last year and took presents to all the children. We also have held social events locally and had meetings there.

Ms Wigley: If planning permission was refused. What would you like to happen and what do you think could happen?

Mrs Readman: What we would really like to happen is for Pemberstone to work with us and to refurbish these houses in a way that has been proven by Structherm can be done at much lower price and allow residents to continue to live here. Difficult to think how to say it but if they have an interest. We believe if they did that people would be here for long term and they would make an income out of gathering rents long term from the estate. Structherm suggest more than 30 years of income. Them homes with no one in them for 8-9 months have not been re-let and they would likely have problems now as they have been empty for so long . But if they didn’t want to let them maybe they could sell them to a housing association or something else. In ideal situation we would like Leeds City Council or housing association to take this estate on. But from what has been said in this inquiry we don’t know if that’s been offered to them or if they have said yes or no. We have been kept in the dark about that and we have asked on numerous occasions which housing associations was it. Have you offered it to Leeds City Council and to then hear evidence only last week that it had been offered to Leeds City Council and that they said no. That was quite a shock to us. As far as we knew it hadn’t been offered to them. Thats what we would like. We want to stay here. We want to work with Pemberstone so we can stay here. We’ve not been able to speak with them they have not engaged with the community at all in any of this and that’s what we would really like to happen.

Ms Wigley: I know its quite hard for you but Mrs Readman can you summarise the effect to you if the appeal goes ahead.

Mrs Readman: I’ve spoken to number of people about this again this weekend as I knew I was coming on today to give evidence. Every single person has said that they would be devastated. I’m sorry im getting emotional but it is an emotional thing (holding back tears) The stress and anxiety of the last 3 years (voice tremors notably) has just been awful. It is with you every single day. You go about your normal business but it’s just there all the time. If this happens I really don’t know what would happen to a lot of people on this estate. Even the ones that are guaranteed a house. Mavis and Barry up the street, they are elderly, they don’t want to move. They have got hobbies they wouldn’t be able to do if they move as it would be a much smaller house. Mavis does a lot of sewing and a lot of craft work she wouldn’t have any spare room to do that. Barry does a lot of work in the shed in his garden, he wouldn’t have that shed and wouldn’t be able to do that. She told me it would probably end them and take their ultimate toll on them. Robert has lived here his entire life. He lost his mum a couple of years ago and his dad has just gone into a care home as he has dementia. Robert has suffered with Mental illness and actually put on our facebook page that if he had to move he would probably commit suicide. See somebody write that....(pause).. its just horrible. (Upset) Something Hazell put on our website yesterday is that it will break our heart and it will break our souls if you take our homes away from us because they mean everything to us, they really do.

Ms Wigley: Thank you Mrs Readman I know its been hard for you but you have been really clear.

Inspector: Thank you Ms Wigley. Mr White I know what you said last week but I just want to check and give you opportunity whether you have any questions you wish to put to Mrs Readman?

Mr White: No sir, I will ask Mr Lynch, thank you very much.

Inspector: I would like to check a few points with you please. The constitution of the residents action group.

Who is able to belong to the action group.

Mrs Readman: It involves anybody in the area to be honest. Because we had to have a constitution the roles of chair and vice chair etc are on there. But everyone can be a part of it. Newsletters are sent out regularly. Facebook group, the community group is also used for general things like bin day, or if we need to help each other. It's a way of helping each other if we need anything. Everyone is involved in it.

Inspector: Page 3 right at top at Paragraph 9. You say Oulton Drive in new estate can be part of the action group?

Mrs Readman: There are few on our facebook group. If they wanted to they would be included in the facebook group if they wanted to be. Yeah.

Inspector: from that the action group isn’t just exclusive to people on Sugar Hill Close or Wordsworth Drive.

Mrs Readman: No, we have many people that are on our page from the local area and even further afield, anybody can be involved.

Inspector: You talk about local community. You mention those other houses, when you think of the local community how far do you feel it actually goes from the houses that we are talking about this week?

Mrs Readman: Well definitely ours and then vicinity of Wordsworth Court because of where it is, it is almost included in ours as of where it is and to a certain extent the rest of the estate. All I can think of is halloween which won’t be happening this year. But they come up from all around and our little bit of the estate is part of the entire estate. Shelly Crescent.

Inspector: You mentioned Shelly Crescent. Would you regard those people who live there as also part of the community?

Mrs Readman: Yes definitely.

Inspector : You mentioned one lady in particular who had been there a long time. You mentioned her late husband had been in the mines. How many do you know to your knowledge that still have links to the mining community?

Mrs Readman: There are probably ten residents that are ex miners or family of ex-miners, but it extends further because there might be other people that live here that were part of the mining community. My husband for one did work down the mines for quite a while but he didn’t live on the estate.

Inspector: Thank you Mrs Readman.

Ms Wigley: Mrs Readman, I think we are done now so you can switch off your camera and relax.

Ms Bruce - (Evidence-In-Chief for @SaveOurHomesLS26)

Ms Wigley: You are Karen Bruce, and from May 2011 to May 2019 you were the Ward councillor for Leeds City Council for the area which the appeal site is located Rothwell ward is that right?.

Ms Bruce: Thats right.

Ms Wigley: Can you explain your situation with regards para2.

Ms Wigley: I’ve been proud to stand shoulder to shoulder with these residents who I have come to know over the last three years since they found out about the threat of losing their homes. I remember being contacted by the residents when a leaflet was distributed with some pizza menus about some plans for a development. Some of the residents didn’t see it, some thought it was about the fields nearby, maybe it doesn’t concern us. Some thought it was about their homes being refurbished. It quickly became apparent that the community realised it was their homes that were being redeveloped. They were devastated. I stood shoulder to shoulder. We have worked together to do deputations to council. We started petition, we ran stalls at local carnivals. We did a march through Rothwell. The residents have been very passionate.

Ms Wigley: Para 3 onwards, you talk of your role as ward councillor in helping with housing issues helping residents in wider ward in terms of being rehoused when come across problems. Can you explain a bit more about that?

Ms Bruce: as a ward councillor you get contacted a lot about local issues. Housing is probably the top one as we are in the middle of a housing crisis as a country. But Rothwell specifically there is a huge shortage of housing, council housing, social housing, affordable housing and I can only imagine it getting worse with the pandemic and people losing their jobs. Its a terrible situation where you have to keep waiting over two years and you have to keep bidding and getting disappointed and feeling like they have no chance as new people come onto the list as people have other needs and priorities. I have some people come to my surgery in tears and in despair really as housing is a basic human right isn’t it? Which is why I feel so passionate in helping SaveOurHomes save their community.

Ms Wigley: Thank you. What effect on your work if you were in post in terms of helping people find housing and on the council housing list do you think there would be if you were still ward councillor. If this proposal went ahead and these people were required to leave home?

Ms Bruce: Yeah its unimaginable, because we had never had that situation where at one time so many people so very close to each other in a community were looking to be re-housed. So you might have 300 people applying for each house at the moment. It could be 400. I really feel for the people already on the list and these people looking for housing. Its impossible situation. You just can’t house so many people.

Ms Wigley: You have been present for most of the inquiry and at the moment there is no particular policy in place to give priority to these residents to bid for affordable housing on the site, so what is your understanding as things stand? We will see if the appellant or council come up with anything else, but whats your understanding of the extent to which, people on the estate, other than the protected residents in protected tenancies, people on the estate could be housed on the affordable housing that is proposed to be provided? How likely do you think that is?

Ms Bruce: There are no plans there is no policy to given priority. Also I don’t see how you can fit 39 children into 11 houses. It would seem impossible. It would seem impossible I don’t think you can fit them all in there.

Ms Wigley: From your experience when you were using it and operating and advising on it the housing policy in Leeds. Do you think they would be given any priority because they are moving out of the existing estate?

Ms Bruce: As I understand it they wouldn’t automatically be given priority above the other people as things stand.

Ms Wigley: You are very familiar with the estate itself and the houses on it. What is your impression of the living standard and general standards of housing in peoples experience compared with technical proper affordable housing in terms of the NPF. How do they compare?

Ms Bruce: Im familiar with the estate. Residents may be getting fed up of seeing me, but on a serious note, as a councillor and even since then I’ve visited the estate on many occasions and Ive been in many of the houses on many occasions. The design is really good. They are very spacious. They have been built for families. Been built for communities. My house is old house, and my house hasn’t got insulation. I have had a look at new houses and had a look and surprised at how compact they are. They are trying to put as many houses as possible on the land. It doesn’t result in best housing even if they are insulated and they are new. There is more to living space than that.

Ms Wigley: What about comparing the Airey homes with those that are available in private rental local market? Standard, space, Considerations price? How do they compare?

Ms Bruce: I think it varies but I think some are paying near 500 per calendar month becomes 800 per calendar month. Would mean local residents are priced out. Not able to afford it. Thats one of the concerns I have actually.

Inspector: Missed the figure.

Ms Bruce: In the region of 800 pounds. Which I believe would price residents out of being able to afford private rents. One of my main concerns about this whole development is that this community are on limited means. They are going to be replaced by a community that has greater means to me that is almost like social cleansing and I really worry about that and the effects for the wider community.

MS Wigley: Is there anything else you wanted to add? Now is that time to I think you have you covered everything you wish to say?

Ms Bruce: Yes, Thank you Ms Wigley,

Mr White: No Sir, I will ask my questions to Mr Lynch. Thank you very much.

Ms Wigley: Sir, I think you are on mute.

Inspector: You’re quite right. Ms Bruce just on the point of affordability and alternative accommodation. We heard last week of Mr Wells and he gave some evidence on cost of accommodation on existing two roads and elsewhere in Oulton.

Ms Bruce: I don’t believe I have seen that evidence.

Inspector: If you are not in a position to answer then please tell me. I will tell you what he says. In terms of the exiting two bedroom accommodation on the appeal site he gives a range of prices per month regulated accommodation average £364 pcm and other protected assured tenancies £433pcm and ASTs are at £500 pcm. Similarly for 3 bedroom, £391 pcm for regulated, £384 for assured and then increasing to ones without protection for £511. Do them figures sound right to you?

Ms Bruce: Yes I believe so. The higher figure I quoted is for people who haven’t got protected tenancies.

Inspector: Elsewhere in Oulton I think you said people might have to pay £800 pcm? Is that right?

Ms Bruce: For private rented yes.

Inspector: Mr Wells suggested a figure might be 2 bed £550pcm and 3 bed £650 pcm. I just wondered what you think of them figures from your understanding?

Ms Bruce: That sounds on the low side to me.

Inspector: Can you tell me what you know about private rented accommodation in Oulton?

Ms Bruce: I have helped residents who have ended up in private accommodation, that’s how I’ve got some idea. Ive had a look on estate agents website and in windows in Rothwell. It’s quite in demand and its quite an expensive area to rent.

Inspector: Is that how you get your figure of what It could cost through your contacts and knowledge of local market?

Ms Bruce: Yes and also all of the houses are semi-detached so you have to compare like with like not just the number of bedrooms.

Inspector: I see. Moving on to what is available in affordable housing in the area. What is the extent of existing affordable housing in Oulton and Rothwell.

Ms Bruce: There is council housing but it doesn’t come up very often which is why there is such a long waiting time for people to get allocated it. There is certain amount of housing association housing as well then obviously with new estates that are being built there is an element if over a certain number of houses an element of affordable housing which is sometimes so called affordable housing which might be affordable for some people but not others. This housing that we are talking about is affordable, is truly affordable housing, its not just called affordable housing, in fact it isn’t called that really but it does meet that test of being affordable to the resident.

Inspector: Yes. Where about’s is the nearest council housing or housing association to the appeal site.

Ms Bruce: There is some in Oulton, I’d say about a mile away.

Inspector: Is that going in the direction of the station and the railway line?

Ms Bruce: It is yes.

Inspector: We heard something about this from Mr Tinsdale, I think he gave us a figure of 151 dwellings that we’re available in Oulton.

Ms Bruce: I won’t argue with him I’m sure he knows the figures.

Inspector: Thank you Ms Bruce. Miss Wigley do you want to come back with anything.

Ms Wigley. No thank you Sir, you can turn your camera off now if you wish and relax.

Ms Wigley: Shall I press on with Mr Lynch?

Inspector: Yes

Mr Lynch - (Evidence-In-Chief for @SaveOurHomesLS26)

Mr White: Can I raise a point, in light of Ms Wigley, Mr Lynch we have down for an hour, can I ask that Dr Beroni evidence is dealt with tomorrow morning even if we finish early.

Inspector: Yes I have been content with that all along.

Ms Wigley: Good morning Mr Lynch, if I could ask you to have your proof to hand. The core strategy, the waste plan, and the NPPF.

They are the documents to which I will be referring to. I’ll introduce you to the inquiry. You are member of Royal Town Planning Institute.Worked as independent planning consultant for 15 years. You have also; Reads a list of roles he has been in. Is that all correct?

Mr Lynch: That is correct yes.

Ms Wigley: Before we get onto it there are a couple of corrections you wanted to make to paragraphs 30 and 32.

Mr Lynch: May I also ask you for document reference for Natural Resources and Waste Plan

Ms Wigley: CD3.07

Mr Lynch: Ref para 30, may I apologise for my omission on the word heritage in the list of topics mentioned, please insert in there Heritage and also the very same correction in paragraph 32. Heritage is a typographical error for which I apologise. I refer to para 34. I refer to NPF but it is actually core document review 6 11 to which I refer there.

Ms Wigley: I want to take you through key policies. Turn to your para 7. You refer to Leeds core strategy. First two bullets refer to textual paragraphs rather than policies as such. If we could have open the core strategy and take some in turn.First one is 1.2 sir, on electronic version page 5 or hard copy page 4 if that helps. Mr Lynch can you just draw out what you want to draw out in relation to that core strategy please.

Mr Lynch: 1.2 sets the scene and refers firstly to core strategy is the spatial plan which is derived from the community strategy "Vision for Leeds" which embraces the overall stratefic direction for the city.

A vision for Leeds. In practice means being fair, sustainable and inclusive. I think that is of relevance to the issues which are under consideration in this inquiry. It goes on to refer to difficulties mentioned about financial pressures, organisations businesses and the community of reference here and the city council working together for the people of Leeds now and in the future.

Ms Wigley: What is the relevance of that to the appeal proposal please?

Mr Lynch: How should those principles be applied to the existing community of Sugar Hill Close and Wordsworth Drive. For proposal to be fair, sustianable and inclusive, I think it would require the communities interests and involvement and stake in the city to be recognised so that they are included in the ambition set out here rather than excluded from it.

Ms Wigley: 1.8 you want to go to next. Page 6 electronic version.

Mr Lynch: First there is a need to give priority to sustainable development for economic prosperity, planning for economic prosperity of existing residents has to be considered here. Seeking to remove social inequality, I think its relevant here that in as much as Threats of eviction proposed would it to be carried out would probably add to social inequality which are key matters in that paragraph.

Ms Wigley: 1.14

Mr Lynch: Second sentence. Part of the same overarching strategic ambition, support desire for Leeds to be fair, open and welcoming with economy that is prosperous and sustainable and all communities are successful.

Ms Wigley: Any relevance to this community rather than generic?

Mr Lycnh: Desire for communities to be successful is directly relevant. If they were to be evicted, they would be excluded from that this community would not be regarded as having been sucessful. I think they would be regarded as unsuccessful. Queston about prosperous economy, if it is to be an inclusive prosperous economy it should be open for all people to benefit rather than be faced with additional hardship and uncertainty.

Ms Wigley: 2.1 Page 10 hardcopy.

My Lynch: Aim of vision for Leeds and the core strategy is the desire to ensure housing growth is planned and delivered in a sustainable way. Everyone can enjoy a good quality of life. Form and location of development respects and enhances the character in local areas in meeting the needs of communities. I think all of that is relevant with the case here.

Ms Wigley: I think I know what you say but why is it relevant?

Mr Lynch: Earlier point about inclusivity, if the community in this estate, the existing residents or the majority of them that do not have security of tenure that some have, if they are to be evicted, they are effectively being excluded from this vision. The housing growth in question does have its merits and we will consider them in due course but that benefit and those merits would be introduced at the expense of the existing residents in my view. It is a matter of this not being inclusive so far as they are concerned if this development were to proceed. The reference to the character of local area meeting the needs of communities brings to mind the discussion that took place on Monday in the heritage roundtable and when we heard from Mr Kitchen about the origins of this community and its associations with the coal mining industry in the past and since and I think it is part of the local character in this area. I think that’s a common conclusion from discussions on Monday.

Ms Wigley: Anything else you wanted to say in the texts?

Mr Lynch: Para 2.30, page 16 on my version.

Ms Wigley: On hard copy. Page 18 on mine.

Mr Lynch: Talking about the need to address health issues and disparities across the district as being a major challenge. That follows some of the other references already being made to the difficulties caused by financial pressures on the council. Strategy recognises that there is a duty to improve public health from the health and social care act. Integral part of the core strategy is to seek to improve public health and wellbeing and its dramitically illustrated in the current pandemic situation how crucial that can be. Indeed how many unexpected consequences can occur from the unusual situation including pressures on Mental Health. I think the threat of eviction, nevermind the actual reality of the experience should it occur is certainly a cause for a pressure on peoples mental health. I think that was clearly expressed by Mrs Readman earlier this morning.

Ms Wigley: Thank you, Proof at para 7, page 26 of my copy or page 24 for others. You were here when Mr Brooks gave his evidence. Is your view of the effect of general policy is the same or different to Mr Brooks. ?

Mr Lynch: In essence my view is same as Mr Brooks.

Ms Wigley: Briefly can you explain then how the general policy applies here please?

Mr Lynch: General policy as I suggest in my list it cross-relates to NPPF. Not clear as they have both been updated and the genereal policy is more recent. Consideration at the outset of first sentence is a repeat of the presumption in favour of sustainable development. In my view, brings us to a consideration of whether this development as proposed, in all the circumstances, is sustainable. My view is that it is not. That influences how I see the policy being applied. Council goes on as discussed with Mr White and Mr Brooks the other day to work proactively with applicants jointly to find solutions where proposals can be approved wherever possible. My view baring in mind the need to qualify as sustainable development there must be circumstances when the term "wherever possible" must mean that a proposal ought not to be approved. Otherwise there would be no mention of it in there. Although perhaps not phrased in specific and exact terms. I take general policy to be crucial to the development we are considering here. Crucial in a different way to various other policies to design, the layout, content, housing mix, provisons for parking, electric vehicle charging points and so on. I distinguish between the establishment of the principle, more accurately say the redevelopment for the others that follow. Thats my basis for including reference to the general policy at this stage.

Ms Wigley: Jointly finding solutions….Is the rest of the sentence relevant or not?

Mr Lynch: Its relevant in a contradictory way as has been made throughout and as is the central part of the Appellant case is that the proposed development does contribute to the economic, social and environmental conditions in Leeds and I dont deny that. My view it has to be weighed against the very same issues as they apply to the existing resident population and in my view the disadvantages and the consequences for the existing residents or indeed the majority of them, so far as they are concerned, they would be excluded from the improvement in economic, social and environmental conditions.

Ms Wigley: Thank you, SP6, moving on to housing issues.

Inspector: PDF is page 54.

Ms Wigley: Thank you. 41 in the hard copy. You said it is relevant can you explain that?

Mr Lynch: The content and the detail is not that relevant. Its part of the strategic background and reference was made in earlier exchanges as to site allocation plans SAP. Questions have occurred aspects of that in relation to green belt. The whole continuing contentious area which applies everywhere about housing and land supply and delivery. The background in Leeds which clearly Mr White is familar with his earlier remarks. Leeds have of late or in recent years had a challenge in meeting the recognisable 5 year supply. There have been a pattern of appeals about that very concern. The strategic total was significantly reduced as part of the core strategy. The expectation is that new development makes a contribution, 70 new houses on appeal site. Makes contribution to the required total delivery in Leeds. Thats fine, but at the same time it involves the removal of 70 houses. In relation to SP6 this proposal currently under consideration has no positive effect. It has a neutral effect. It proposes to take away 70 and put 70 back so its effectively a zero impact.

Ms Wigley: Page 150 or 154 depending on version you are in.

Mr Lynch: EN1?

Ms Wigley, yes EN1, what is the relevance to this policy and does proposal comply with it?

Mr Lynch: The policy is to give effect not just to Leeds position but the national position to meet the challenge carbon emissions. My view is that the development will involve a carbon loss, on that I don’t dispute the appellants case that the new houses will be more carbon efficient. I don’t deny that at all. The point in factor is how you factor in carbon costs from demolition. Experts are agreed that embodied carbon will eventually be recovered I think the evidence in Mr Sheppards proof was it could be unto 20 years. There are grounds it could be sooner than that.

The option of refurbishment has not been considered by Mr Blake Whilst refurbishment does involve embodied carbon it would be a much lower order that redevelopment.

Refer to two Core Documents in your proof. In your para 23 historic England report 2019 and a book called How Bad are Bananas?

7.13 and 7.14 if we start with 7.14 your bananas reference.

Mr Lynch: Mike Berners book is not directed at developers directly. It address peoples normal lives and is discipline of carbon counting. Two pages referring to a new build house. It refers in detail and comes to conclusion that new build that achieve a carbon neutral after a long period are not the preferred solution. Refurbishment that can

Ms Wigley: Case study that is discussed and final paragraph.

Mr Lynch: Based on case study, basic principle if this study is representative as he suspects it is. Investing in improvements to old homes is dramatically more cost effective than knocking them down and starting again.

Ms Wigley: What does he mean by Cost Effective what does he mean ?

Mr Lynch: I understand him to mean cost effective in terms of Carbon cost.

Embodied carbon is significant source of carbon but largely overlooked but can account for a third of a new buildings Carbon emmissions over a sixy year period. We must focus on using and re-using our historic assets to fully explore the opportunities that already exist. If we reuse what is already here we can avoid emitting carbon. Embodied carbon accounts for upto a third of the carbon emissions of a new building. Climate Change crisis demands a new approach to managing change to a built environment. We must prioritise our existing buildings by making refurbishments and re-use of existing buildings worthwhile, compared with, knocking them down. We must move towards a whole life carbon approach for buildings to ensure we make more holistic and sustainable decisions. If we do not count the whole life of carbon in buildings we may meet carbon targets without actually reducing carbon emissions and thereby lose the war against climate change.

Inspector: Can you give me the reference please Mr Lynch.

Mr Lynch: Page 62 and Page 63 sir.

Ms Wigley: If I can help you sir, the First section is from bullet list of page 62, second section is page 63 and third section read was at bottom of page 63.

Ms Wigley: EN6 - Strategic Waste Management

Mr Lynch: Why is EN6 relevant to this proposal. May I refer to question of the waste hierarchy.

Ms Wigley: Core document 3.7, Table 2.1 Waste Hierarchy and Table 4.1 (Categories with waste arisings) Is table that shows the categories of waste arisings. Which shall we look at first?

Mr Lynch: Hieracry is familiar, ambition is to avoid waste, to reduce waste then to reuse waste. Familiar principles that have been around a while now.

Ms Wigley: Table 2.1 page 20 in the plan. Reduce Reuse Recycle. The key ambition is to reduce.

We see table 4.1 (p.36 in pdf) Construction and waste demolition as a category generates the largest volume of waste generation is from this category.

Mr Lynch: Construction, demolition and excavation is one of the most if not the most sector of volume of waste arising in the city.

Table in EN6 distils that figure. Waste Stream tonnes per annum. Construction waste is the highest there. The point is that it represents an additional contribution to the waste in this category. There is an alternative which would involve significantly less construction waste being generated. Because this is less by preference of feasible alternatives. My view is it is not in accordance with EN6.

Ms Wigley: Now been through list in para 7. Before we go onto NPF in para 8. We just want to note that you accept that there are extra policies which you accept the proposal complies with them?

Mr Lynch: Yes that is right the exception being policy H2, which the policy is more nuanced. As far as im concerned they are fully complied with. I think its common ground with local authority and where I am concerned.

Ms Wigley: Can you explain the point on H2 please?

Mr Lynch: It is more permissive. It allows for non allocated sites to be called on. In other cases it perhaps would be. The policy is not only applicable to an unallocated site, but I don’t think its appropriate to invoke support from H2 when ***

Ms Wigley: You accept in para 28, you agree policy proposal complies with them concluding in para 33. You say it doesn’t comply overall as a whole. If taking a referendum you would see the number of compliance points vs non compliant policy points outweighs the non compliance ones. Why do you say we should not take that approach when balancing them?

Mr Lynch: Some policies are more pertinent. The other policies which are complied with are more relevant once the principle has been established. I think the Principle is open to challenge because of the general principles.

Ms Wigley: Para 8B is your first reference? Page 7 in the pdf. Can you explain context of the policy in your opinion and how it applies here.

Mr Lynch: National Policy Planning Framework is the support for and promotion of sustainable development. The golden thread running through the framework and by design the entire planning system. Three strands, economic, social and environmental

Social : promote strong vibrant communities we heard evidence today and earlier in the week. We have a strong existing vibrant community here, if proposal does not support those people it follows it does not meet proposal policy of sustainability.

Ms Wigley: 91, page 28 in pdf. Actually its 29 I do apologise. What do you draw from para 91 in this please?

Mr Lynch: 91 refers to the decision of planning policies and planning decisions to be safe places, social interactions, safety, accessibility, so fear of crime and crime do not undermine quality of life, support for healthy lifestyles. Promotion of local health and well-being needs.

Proposal would have the effect of denying the existing residents of the benefits that the proposal are supposed to achieve. I don’t argue new builds would promote to new community if the redevelopment would take place but it would be at the cost of the loss of the benefits to the existing community. Promotion of health lifestyle is not achieved as I have said earlier by the proposal of evicting people. The application should weigh against the granting of planning in this case.

Mr Lynch: The national policy and local policy in EN1 and EN6 are mutually compatible. The planning system should support the needs to changing carbon needs, including the conversion, (I think we stretch the point to refurbishments) but the point is it is in favour of retain existing building in preference to redeveloping them. It is not disputed it will in due course that carbon savings eventually. The fact that preference option of refurbishment has not been considered. It would be an alternative scenario and in my view para 148 weighs against the granting of planning consent.

Mr Lynch: P11,

(Connection Lost)

Loss of the asset is significant, considered with overall benefits with the scheme offered. I don’t dispute the benefits.

Ms Wigley: Dr Usher referred to some of them decisions and they were later produced did you want to draw any points on them.

Mr Lynch: In each case the inspectors decisions reflected a recognition that even a non designated asset which might only be locally important can be a signficant and decisive material consideration in determining a planning application. In all of the cases they arrived at that conclusion that as non designated assets the buildings in question did not have any actual specific statutory protections had they been listed. I think those specific cases offer parrallels that support our conclusion that the balanced judgement in 197 weighs against the proposal.

Mr Lynch: May I just mention Para 199: There was discussion at the roundtable about the ability to record the buildings for archive purposes and the form that might take. It's worth noting the point here that the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted. It reinforces the points I've made on 197. In answer to your queston Ms Wigley. Can I go back to 91.

Ms Wigley: Yes, lets do that.

Mr White: Slight health warning. Ms Wigley expressly asked Mr Lynch to take part in rountable to give his view on policy. Ms Usher is not here. We agreed we would deal with policy relating to heritage at the roundtable.

Ms Wigley: Thats right, but of course Mr Sheppard also refers to heritage policy and I couldn't in reality take Mr Lynch to his planning balance without dealing with the heritage policy. Mr Sheppard would of course have opportunity to comment on how the heritage policy applies. The appeal decisions werent produced.

Mr White: I'm not having that Ms Wigley, You had sight of them, The inspector asked for them, and you had four weeks to ask for them.

Ms Wigley: I dont think there is any prejudice caused here in what I've asked Mr Lynch to comment on.

Mr White: Thats not the test, thats the point, you said lets deal with policy in the heritage round table which we both agreed on your suggestion. Now your dealing with policy in some detail relating to heritage in another forum to which we agreed to.

Ms Wigley: Well Sir, I'm going to para 91, which has nothing to do with heritage.

Inspector: No, the point about overall policy being taken into account by the planning witness and Mr Sheppard dealing with that is right in any event Mr White.

Ms Wigley: Thank you sir, Para 91. You want to say something further on that?

Mr Lynch: Only that this connects with the earlier references to Leeds Core Strategy and its recognition of the importance of healthy, inclusive and safe places for communities.

Ms Wigley: So its the connection between that and the core strategy.

Mr Lynch: If I understand your question being a closing question, may I respond by going to the final sentence of my proof

Ms Wigley: para 34 is it?.

Mr Lynch: The core strategy recognises the governments localism agenda, it puts listening to communities and gaining local consensus at the heart of the planning system. I conclude by saying the strongly expressed views of the people who will be directly and dramatically disadvantaged by this proposed development must carry substantial weight in the determination of the proposal. Thank you.

Ms Wigley: I have no further questions for you and I'm sure others will have. Are you content to proceed now or shall we take lunch adjournement?

Inspector: Lunch adjournment until 13:40

Judicial Domicide would like to thank SaveOurHomesLS26 for granting permission to us to use the feature photo.

If you would like to donate to the SaveOurHomesLS26 campaign please click here

DAY 4: Pemberstone v. SaveOurHomesLS26

Jay Dee — Fri, 09 Oct 2020 18:52:00 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

DAY 3: Pemberstone v. SaveOurHomesLS26

Jay Dee — Thu, 08 Oct 2020 18:34:00 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

DAY 2: Pemberstone v. SaveOurHomesLS26

Jay Dee — Wed, 07 Oct 2020 19:00:00 GMT

APPEAL REF: APP/N4720/W/20/3250249‌
‌SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

The Planning Inspector has confirmed at the preliminary part of Day 1 of this appeal inquiry that no objections have been raised with regards to us ("Judicial Domicide") live tweeting the Planning Inspectorate Appeal Inquiry. We, ("Judicial Domicide") must state that this is not intended to be an official, accurate, nor verbatim transcript, but it is recorded here by us to serve the purpose as a true record of the inquiry hearing(s) as we observed and recorded. We have compiled the below from live tweets and our fast notes taken during the observation of the hearing. There are also areas where we did not observe and/or we had connection issues which resulted in the loss of being able to observe.
‌‌
‌This is Day 2 of the Appeal inquiry of Pemberstone v. @SaveOurHomeLS26.
‌‌
Mr White: Point to make re implications of repair for occupancy and feasibility of repair options do touch on this afternoon.

Examples at Appendix 1 :Structherm

Mr Lawton gives a rough cost. I’ve asked Mr Wells to be here this morning as it affects his evidence.

Mr White: I ask Ms Wigley to consider this. Feasibilty of repair options. serious point about the SaveOurHomes Case. With Leeds we have reasonable position in that we have a ackowldement and acceptance of Dyson Report.

The Rule 6 party however resisted in the Statement of Common Ground say that the condition of the homes is not agreed. It’s not expanded on.

Mr White: I do think on the evidence, I will press the inquiry, for SaveOurHomes to tell the inquiry of what they say is necessary in order for continued occupation of the houses. If implication at very least Structherm is necessary that may save time.

Ms Wigley: On the 3 points: 1. Mr White gave me notice helpfully about costings last night. I did pass that through to Mr Lawton and Mr Rogers and they have been doing their best to get the information together. I know they won’t have all the information today but they will do their best and can provide it later in the inquiry or tomorrow. They obviously don’t have all the information regarding all the case studies at their fingertips but I can assure you they will do their best.

Ms Wigley As to existing condition and Dyson report. It is correct that we don’t accept it. I will be asking questions through you Sir about it and how its presented.

Ms Wigley: Very fair question about what is necessary for continuing occupation. I would like to seek instruction in regards to that question.

Mr White: Can they take instruction on what SaveOurHomes say if they don’t accept the Dyson report what their formal position is on existing condition if they don’t accept it.

Ms Wigley: If I can just respond to that. We are a rule 6 party and we do not have the benefit of expert consultants, so we haven’t been able to undertake a formal structural survey and provide detailed evidence of the existing condition. I will take instruction but we will not be able to put forward positive evidence as to the structural condition but I don’t think that should disqualify us and me from probing some of the assumptions and the results from the surveys. I don’t know what the answer would be as I haven’t asked the questions yet but I would like to ask Mr Askew how that report was put together and what its implications are in his expert view and I believe we are entitled to do that even if we don’t have our own expert.

Mr White: Its completely fair that Dyson Report is investigated but I have a problem with what Save Our Homes say is necessary which is consequential on the condition. We will be saying the Structherm system does not work when you have the level of issues that Dyson have identified. Whether you accept that or not we will investigate.

Ms Wigley: I haven’t taken instructions yet but I suspect the position is that Structherm will be needed, not necessarily immediately but would be needed in the short to medium term. But please don’t hold me to that as I must seek instruction.

As to existing condition we made clear there is a limitation to our evidence because of the lack of expert but what we do have is compelling evidence from Mr Lawton supported by Mr Rogers that the structural defects identified are not a surprise and are not significantly different from what they encounter day after day when repairing these homes. Its on that basis that they consider these homes can be sustainably and viably repaired. Thats our position.

Mr White: I’m an optimist, I would like if Ms Wigley can take instruction.

Inspector: I think we will take 15 minutes for that but I have a question for Mr White: What is the status of the NDA documentation is. We have a 2020 report which is detailed report that looks at every property. Summary report by NDA is summary as I read it in 2018. Is the 2020 superseding the 2018 summary.

Mr Sheppard: Might be error on my part. I think the 2020 report is the full report. The 2018 is superseded.

Inspector: Point of reference for Dyson is the 2020 report and the 2018 summary is earlier document that is superseded?

Mr Sheppard: Thats correct.

Adjourned until 10:05am

Ms Wigley: They were designated defective in 1985 and they have continued for many years without any intervention. The Structherm system can dramatically extend the life of the properties and enable them to be sustainably repaired going forwards not with standing the defects identified.

They cannot say when this intervention would be needed as they do not have the sufficient expertise to say whether intervention is needed within 6 months, within 2 years within 5 years within 10 years.

Mr White: Ms Wigley has told us frankly what we already know. I don’t think it is unreasonable to know what her instructions are about the existing condition. What is the starting point of the debate. Is it existing condition can carry on for a significant period with Structherm as an option at a later date. Is the view that Dyson are overeating the pudding and the defects

Our position is absolutely clear. That the Structherm and also the do nothing approach is simply not good enough, and its not acceptable in light of the Dyson report. Mr Askew will speak to that effect. I don’t think it’s unreasonable for Ms Wigley to tell us the collective point of Save Our Homes at this point, Any intervention, some intervention?

Ms Wigley: Obviously we have expert evidence, well , expert report without the witness who did the report but we have a report from a structural engineer that says there needs to be intervention. We don’t have expert evidence to counter that. What I do have is questions and queries about what that report is telling us and that is why I want to reserve my position for all at SaveOurHomes because at the moment I am not convinced the credibility, sorry not the credibility I’m not going to attack that, but I don’t think it all stacks up, and says what it purports to say. If I put it this way I think following this session I would be able to take instruction as to what our clients position is, but in advance of that we have queries on the Dyson report and Id like to know the answers to those queries before we accept it in terms of its conclusion that some intervention is needed in the short term.

Inspector: But Ms Wigley your witnesses have seen the Dyson report. Mr Lawton has been to the site and looked at most of the houses externally. Presumably there is an initial position that has been taken? What is the starting point?

Ms Wigley: The starting point sir is that if Dyson report is accurate, if the implication is as it purports to be then SaveOurHomes position is the Structherm system is a suitable and sustainable solution which can be implemented imminently and can enable a sustainable future for these houses. Mr Lawton and Mr Rogers have been to the site and have taken that opportunity but the implications of the Dyson report and the exact nature of its terms haven’t been able to interrogate that and that is part of the purpose of this inquiry. I have made absolutely clear I don’t have expert structural evidence but that doesn’t mean we are unable to question and to enable the whole inquiry from understanding what the Dyson report is saying.

Inspector: Ok Ms Wigley, there’s a qualified response, Mr White.

Mr White: We are not going to take this any further but I’m going to put it on the table that it is deeply unsatisfactory that we are told that she seeks to criticise but not seek to tell you what basis that criticism is made. Of course we are professionals and professionally able to interrogate any report but we normally do it on the basis of expert evidence which seeks to say this is wrong as we will do tomorrow. Here Ms Wigley wants free reign to go after Dyson which she admits she’s got no structural engineer to tell her what’s wrong with the Dyson report. Its what we call in the trade a complete fishing exercise and its also unsatisfactory that this afternoon that we may hear two hours hearing from Structherm but that it may be Ms Wigleys position that actually Structherm isn’t even necessary. I don’t think its unreasonable that Ms Wigley gets instruction as to their position so we can all save time.

Ms Wigley: To short cut matters I can say that, that we accept the likelihood that the Structherm system is needed in the short to medium term. We accept that likelyhood but I cannot go further than as we don’t have the informed view of my clients witnesses and I would like opportunity to understand the Dyson report more before concluding on it.

Inspector: I think to make progress we should proceed to roundtable now on this matter.

Intended Participants: Mr Askew for the Appellant

Mr Rogers and Mr Lawton for SaveOurHomes

Mr Tinsdale.

Ms Bell: Thats right because we accept the Dyson report we don’t envisage having much to say but want someone there in case we can assist.

Mr White : I would like to reserve Mr Wells regarding the costings.

Inspector: Overview of Airey design and designation of these types of properties as defective probably useful to start with Mr Askew first I think.

Mr Askew: Design for Airey houses was all manufactured offsite and post world war two it was a system that could be erected on site by relatively low skilled workers. Key components of the system they are effectively concrete posts which have a steel tube encased within them combined with Shiplap panels. Once delivered posts put in place secured with temporary props whilst rest of work proceeded. The shiplap panels were attached to the posts with copper wire which would hold them in place. There is very little there in terms of structural support.

Mr Askew: That forms basis of perimeter of the structure. Once completed the floor structure needed to be put in place. These are generally joists or they could be timber joists with metal lattice structure. Each individual floor joist is bolted to one individual post at each end. Posts come preformed with holes at the top that accept bolted connection to the joist.

Inspector : Is that where the reference to Goalpost comes from?

Mr Askew: It forms a goal post between the outer and inner wall and the outer wall at the opposite side. Two bolt connection. Shiplap panels then installed to that level. Concrete column would protrude above and then upper levels are slotted over the top. There Is no physical connection other than the socket. Shiplap panels are then affixed by wire as the same manner to the upper columns.

Roof construction is constructed as a standard roof construction with timber purlins and timber joists.

Inspector: What do the initial concrete posts at ground level stand on?

Mr Askew: They bear on top of the concrete foundation they lay a DPC and those posts are sat on the DPC and there is a jig in place to position during construction.

Inspector: They don’t penetrate the foundation?

Mr Askew: They sit directly on the concrete board the DPC goes down and the posts are placed on top. They will build a small plinth around the concrete to make up difference between ground level and the other side of shiplap panel.

Inspector: They sit within that plinth?

Mr Askew: They sit behind the plinth. The plinth is in front of the posts.

Inspector: Reason for being designated defective. From what Ive read it primarily relates to the columns.

Mr Askew: Its part of the issue, they were designed to be built by low skilled workers and inevitably it has to be a simple form of construction and critical details were overlooked. There is tendency for water Ingress through the shiplap panels and as post is exposed at base its exposed to water during its life and its exposed to water across its life the posts within the concrete corrode and expand. Results in cracking in base of columns. In addition it can be due to humid environment, bathrooms kitchens that kind of environment can result in corrosion to internal columns. The defective designation does not mean that a defect is there it relates to possibility that there is a flaw in the design that can lead to a defect. These are the defects we see in the Dyson report.

Inspector: Flaw in the design leads to defects. Is that arrangement of the panels.

Mr Askew: Primary is due to water ingress. There is no seal between the panels. Water inevitably seeps through the gaps and drains in the bottom. Posts are sat in the water for prolonged periods which causes corrosion to post.

By virtue of the need for it to be a simple design that could be erected by low skilled workers there was no protection for water ingress. The system itself is flawed regardless who installed it.

Inspector: Because it doesn’t protect against water ingress?

Mr Askew: Effectively yes. Also issues with humidity internally.

Inspector : I thought there was a reference in Dyson about quality of columns?

Mr Askew: Very little concrete cover to as soon as slightest bit of corrosion its much easier to break away because of lack of concrete cover. It is deficient design. BRE did the research into. It is the risk of a defect occurring. Thats the corrosion of the steel.

Inspector: How does humidity get to the embedded steel within the column.

Mr Askew: Limited very cover. Max 12mm of concrete. Concrete is porous. Ambient moisture in air will inevitably

Soak into the concrete. Less cover you have got easier it is to reach the steel within.

Inspector: Mr Lawton does that concur with your understanding.

Mr Lawton: Yes it does but also on the Dyson report we don’t actually see the foundation we start 3 panels up on the concrete panels, so we don’t know if any proof at the base are actually rotten.

Ms Wigley: Matter of clarification with Mr Askew. Can I just check that the weather ingress externally coming through shiplap panels can affects external columns and then the potential for internal columns to be affected by humidity in bathroom and kitchens. Can I clarify that?

Mr Askew: that’s correct.

Inspector : Move onto the existing condition. 2020 report which looked at each of the 70 houses on the appeal site detailed in appendices and summary at section 4. Gives RAG classification. Can you give overview as you understand it. As you see the condition of the housing stock on those two roads?

Mr Askew: They base their report on the BSE guidance and it refers to number of defective columns in a row. If 3 or more defective columns they pose a risk to stability of the building in the long term. That is the RAG categorisation you have the RED AMBER AND GREEN. Where you have 3 or more columns defective its a classification of red. Less than 3 it comes down to the Amber category. On two properties out of 70 where there was slightly less damage it was green and it would be expected to inspect bi-annually to keep eye on condition.

Inspector: To be green has the property got to have no damage at all to columns.

Mr Askew: I believe that to be the case, yes.

Any defective column must be made redundant. By virtue of the fact that the floor joists are bolted into the columns to make them redundant you would need something in its place to support the floor.

Inspector: I don’t want to go on to potential solutions I just want to stick to the current condition. The RAG framework does that solely relate to columns only or are there other factors.

Mr Askew: Classification is an indication of defects to the columns, columns only. Thats the key criteria in terms of Airey House construction.

Inspector: Any defects been made about the panels or any other part particular to Airey house construction?

Mr Askew: Shiplap panels had dislodged in some areas but it is fairly minor and report focussed on precast columns. It briefly reviewed roof space and they were unable to inspect the floors due to the coverings.

Mr Askew: Dyson report noted it in passing and I would say that they would need to be inspected by timber specialists if they were to retain the timber elements.

Inspector: Does it relate to corrosion or are there other matters.

Mr Askew: Picked up as a defect is cracking or spoiling of the concrete if concrete is fallen away as a result of corrosion causing cracking.

Inspector: if damage to 3 in a row. Is it right that properties identified as red could vary considerably in condition? Some relatively small crack but some with more extensive cracking?

Mr Askew: You could but its still a sign that element has deteriorated and its losing its ability to support the load it was intended to carry.

Ms Wigley: Point of clarification. You said any cracking including a hair line crack that would contribute to the RAG classification. In your general structural knowledge would a hair line crack not be caused by something other than steel corrosion.

Mr Askew: Depends on the form of construction generally take a view on hair line crack and may attribute other causes but given relatively small sections we are dealing with its unlikely to be any other cause in such a small section.

Ms Wigley: You wouldn’t just have hair line cracks appearing cosmetically like you would in other houses where you see them in mortar? Its not something that just happens? It would almost definitely be from steel corrosion would it?

Mr Askew: Its the most likely cause, you have a structure that is designated defective due to a specific issue. The vast majority of times if displaying cracking in a specific pattern it’s more than likely going to tie in with the fact that it’s down to corrosion of the posts, especially where the cracking is located.

Ms Wigley: Ok, but in the BRE classification quoted on section 3.2 of report on page 10 on pdf. “Structural integrity is at risk where 3 or more adjacent posts are significantly cracked or spoiled? Its noticeable there the word significantly cracked, presumably it would include a hair line crack in the definition of significantly cracked would it?

Mr Askew: It depends on your definition of significant.

I would say if crack is suspected as a result of corrosion that to me is significant as its already show signs of deterioration and structural capacity has been reduced.

Ms Wigley: If that was the case it would say any cracking then wouldn’t it?

Mr Askew: I take your meaning but we are looking at long term deterioration of the structure. If left in current state there is a risk it will continue to deteriorate as a known issue with these structures.

Ms Wigley: But when you say Long term, the RAG classification is quite short term isn’t it? 1-2 years? So if any cracking taken into account is it not overestimating the shortness of time in which intervention is needed. Any hairline crack now wouldn’t necessarily lead to structural instability within two years or even within 1 year would it?

Mr Askew: My understanding is that Dyson would pick up all of the cracks including hair line cracks. They are the experts in this field. They have been doing it for 40 years they are one of the leading companies in this field. They have made assessment based on their assessments of the cracks. I’m looking at photos of cracks and its my opinion of what’s hairline vs what isn’t.

Ms Wigley: They use the word hair line in a lot of the photos so it does appear they have taken account of hair line cracking and classified that as significant with the BRE RAG classification.

Mr Askew: demonstrates corrosion has occurred and that column is in process of losing ability to support loads.

Ms Wigley: Can I ask a further question about deteroration - report refers to deterioration between 2018 and 2020 and that would give an indication of rate of deterioration. Page 19 in PDF. 3.5.5 - Do you have that Mr Askew?

Mr Askew. I have these two documents and I have visited the site and had a walk around and been inside two properties.

Ms Wigley: But you haven’t seen any further results from the 2018 report?

Mr Askew: I’ve had the original.

Ms Wigley: It has the 2018 appended to it doesn’t it.

Mr Askew yes.

Ms Wigley: The 2018 report was 5 houses wasn’t it?

Mr Askew: Yes

Ms Wigley: Its impossible to objectively understand the deterioration as I understand the tables, columns or photographic records are not presented in the same way. In relation to the houses inspected in 2018. Its in 3rd one appendix F, the last document in appendix G.

Ms Wigley: You can’t compare like for like can you.

Mr Askew: Not directly no, so we are relying on Dyson to make that assessment.

Ms Wigley: So we are relying on their judgement. Do you know why you were asked to give evidence rather than anyone from Dyson?

Mr Askew: It was to give a second opinion. Obviously the buildings have been inspected by someone who is an expert in that field. It was just to get a second opinion on that report.

Ms Wigley: But you’re not able to explain the judgements that went into the comparison between 2018 and 2020 for the deterioration are you?

Mr Askew: Other than they have 40 years experience in this field and are considered experts. Its not for me to question their assessment as such.

Ms Wigley: No but it is for me to question it unfortunately and I can’t ask them so I am asking you, but you can’t give an answer can you because …

Mr Askew: What is the suggestion sorry is it the suggestion Dyson are over egging the report?

Ms Wigley: Well, potentially because we just looked at the word significantly and the BRE very much used the word significant cracks as Indicating structural instability. You’ve confirmed Dyson have used and included hairline cracks in relation to that. My suggestion is that they are over egging the immediacy of what is required. You fairly accepted it’s a long term indication of hair line crack.

Mr White: Thats not fair he didn’t accept that

Ms Wigley: I think he did he said it’s looking at long term of stability.

Mr Askew: If you look at rate of deterioration that’s been mentioned Dyson have indicated that it has deteriorated in relatively short time period. We’re not talking long term.

Mr White: I’m distinctly unhappy Ms Wigley is trying to turn this into cross examination.

Inspector: Fair point Mr White.

Ms Wigley: I apologise if it’s starting to take that tone, but they are genuine queries and it’s a force of habit. Im not trying to be unfair im trying to explore the RAG system and understand it in more depth.

Ms Wigley: If you can ask at appropriate time Mr Lawton or Mr Rogers about slenderness of the column.

Mr White: I want to assist you, I want Ms Wigley to provide confirmation that she will get Mr Lawton and Mr Rogers professional qualifications so you know those and I know those as it might be relevant at later date. Appendix C, orange table. First page of Appendix C.

Ms Wigley: page 29 of pdf if it helps sir.

Mr White: Do you know Mr Askew about 18 columns on the front elevation & underneath they have tick or cross and I assume a tick is inspected and a cross is not inspected.

Mr Askew: that’s my understanding

Mr White: Assistance for Inspector that you get C for cracked S for Spoiled? I for Insulation? Do you see those.

What does spoiled mean?

Mr Askew: a crack but where the concrete itself breaks away. Where its fallen away from main section.

Mr White: Column 8 which is replicated throughout Appendix C. We see C cracked 700x1 What does that indicate the 700x1 as opposed to say Column 10 which has s / c 600x1

Mr Askew: So Column 1 would be 1 crack 700 mm long. Column 10 would be both cracked and spoiled? 600mm long.

Mr White: If the inspector wants to look at the extent of cracking you can goto photo log appendix D. Whilst they don’t identify each crack you can then look at the other appendix or not?

Mr Askew: Thats correct.

Ms Wigley: Just why we are here with the table . This is number 1 sugar hill close. I think this is one that was also inspected in 2018 report. Very helpful just explained the extent of cracking in 2020 this table is showing.

Mr Askew: Yes this is 2020 report.

Ms Wigley: So I think there are 3 columns showing cracking 2 in front elevation and 1 in gable end is that the right interpretation ?

Mr Askew: 2 cracked in front and in the gable Column 13 yes that’s correct.

Ms Wigley: None in the rear?

Mr Askew: None that are cracked but 7 wasn’t able to be inspected.

Ms Wigley: Of the 6 that were inspected. No cracking.

The “I” just means insulation present.

Mr Askew: Yes

Would you have any feel for how what this might have been two years before. What sort of interpretation would Dyson have formed?

Mr Askew: They have benefit of doing inspection in 2018 and then gone back to do comparison to retrospectively guess at what the condition would have been at time is difficult as depend on environmental factors.

Inspector: I’d like to know your view about the 70 houses. What extent you agree or disagree with Dyson. If particular points of difference id like you to be clear about those. If you consider there are problems Id like to know exactly what those are.

Mr Rogers: Im in agreement on most points. Same with the Dyson report. We are not in a position to disagree with the condition of the properties with exception of perhaps the timescale they are going to become defective. Im not a structural engineer. Im from Westdale group. They are the contractor that installs the Structherm system. We’ve installed the system on hundreds of different property types across the UK. We’ve done a couple of hundred Airey properties in the past as well. So we have got practical hands on experience of doing the repairs.

Mr Rogers: Slenderness or under-design of the concrete frame. There is 18 on elevation to compensate for size. The way to repair is to agree with Mr Askew and to make the defective redundant. Thats what the Structherm system does.

Inspector: can we just stick to the existing condition Mr Rogers for the moment. Less cover. More water can get easily into the post. Is that a view that you share?

Mr Rogers: I wouldn’t disagree no.

Inspector : What about drilling holes in the posts for provision of services. What effect would it have?

Mr Rogers: The vertical post would be defective. It would become Useless. It would depend on extent of drilling but if we are talking services going through it then yeah.

Inspector: In terms of RAG system. Whats your view?

Mr Rogers: Im not qualified to criticise what Dyson have done nor to disagree. General building experience and looking at deterioration of most construction sites I don’t see how they can put a timescale on it. Understand logic of RAG but can’t understand how you say property is unsafe to live in within 12 months.

Inspector : Let’s look at it a different way. If there is evidence of 3 columns in a row with evidence of cracking. Rather than 1 or 2 and then a gap. Is that more significant when they are together?

Mr Rogers: I’d agree so yeah.

Inspector: In these types of properties. If there is evidence of cracking whether hair line or something more substantial where concrete is falling away. Is that a matter of concern?

Mr Rogers: This is where I disagree. I think if you have hair line cracking it all depends on the crack. As Mr Askew pointed out, it was unskilled labour that erected these properties in the first place. Chips, cracks, hairline damage bits that have been interpreted as falling could have been done at construction stage. They might have been there since the properties were put up. It’s subjective. To me a crack is a crack and there are one of a million reasons it could be caused by.

Mr Rogers: I agree a crack is more likely to be structural but I would not say 100% that every single crack is a risk or a direct result of corrosion of steel in the centre.

Inspector: If not a result of corrosion of expansion taking place and causing it to happen. Once it has occurred. Does that cause weakness to that structure. Is it more likely that moisture or water could penetrate.

Mr Rogers: Not necessarily it depends on the extent. It depends on if your talking a crack or a chip or the extent of it.

Inspector: Putting aside your reservation about timescale linked to RAG. Do those categories indicate the level of seriousness. 15 properties where fairly serious and 53 where attention is required and 2 in most favourably.

Mr Rogers: If I lived in one and I was presented with Dyson report I’d want to fix it. Regardless of colour. It’s only going to get worse. If I put myself in owner-occupier position and Id been given that report I’d want to fix it regardless.

Inspector: Is it your view they are all vulnerable in this respect

Mr Rogers: Yeah, I think they are designated defective for a reason.

Inspector: You said on a couple of occasions your not qualified to disagree with the Dyson report. I wonder if you want to go further than that. To what extent are you able to say from your knowledge of these properties. What extent is it a fair view.

Mr Rogers: We have had a visual look. In comparison to the hundreds we have done in the past. The elevations look plumbed. Theres no sign of movement Theres no excessive cracking. Sign of movement in the suspended PRC panels They look pretty good compared to what we are used to.

Inspector: I don’t think that was quite what I asked. You said look pretty good from visual inspection outside. What interested in is to what extent you can take a view that Dyson report gives a fair overview of their condition? That the great majority of the properties require attention?

Mr Rogers: Thats personal experience, personal credentials its general building experience. Going back to Mr Askew described it. The BRE reports Ive read myself. Ive got 18 ??years of construction experience behind me and I would tend to agree if you have 3 extensions in a row that have all failed and your first floor is suspended on them extensions then your going to get some movement and some risk.

Inspector: Ok thanks Mr Rogers. Mr Lawton. Are there any points you want to add.

Mr Lawton: The condition compared to ones we have done in past are very good. Sometimes you can see where concrete panels have dislodged or sagged and majority of these properties are all still standing there as they should be. We have seen worse.

Inspector: is Dyson Report is it giving a fair condition of the properties?

Mr Lawton: It is, we can’t agree with RAG

Inspector: Is that because of your view re timescale.

Mr Lawton: Not just about timescale because there is only hair line cracks so from our point of view we can see them being repaired very easily.

Inspector: But nevertheless I take your point re timescale but notwithstanding that would you share the view with the red category are the most serious damaged?

Mr Lawton: Photos are not very clear. We can’t really disagree or agree.

Inspector : What Mr Askew says what determines if it gets red category is if damage to 3 columns in a row. Is that a reason for concern in your view?

Mr Lawton: It is yeah but again our system will overcome that.

Inspector: We will come to that before too long. Just trying to underhand the extent of the problem as they currently are. If go below the red category and some damage to 1 or 2 columns together. Is that nevertheless something that requires attention ?

Mr Lawton: It depends on degree of deterioration which it doesn’t really state.

Inspector : Can you comment on point Mr Rogers made he said if he was a resident and he was presented with that report he would want to get that property repaired and fix. Is that a sentiment you share?

Mr Lawton: I think everybody would. If you know you have got some issues. A lot of properties have issue. Not just Aireys traditional properties have issues and you can’t put it down to being Airey houses.

Mr Askew: Mr Rogers referenced they looked at the internal columns through a window seems unusual way to arrive at conclusion that the internal columns look ok. We went into one of the properties and we looked at the column front on and you can’t see any cracking. You have to look at the side where the reduced cover is. Quite a significant amount of concrete in one case had come away and you obviously wouldn’t see that through looking through a window. It seems unusual to say they looked at it through a window.

Mr Rogers: If we didn’t see it we didn’t see it. I don’t want to go into any more we did look through window if we missed it. We are not going to argue it wasn’t there. It either was or it wasn’t.

Inspector: Mr Askew the RAG gives timescale for intervention. Whats your view on position on safety now. Thinking of what you say in para 5.2 of your proof.

Mr Askew: Timescales established by Dyson. No one is suggesting that when you hit 12 month or two year mark these properties are going to collapse but its a matter of risk. The longer the properties are left the greater the risk.

Inspector: Is it correct to say that they are a danger to life?

Mr Askew: At this moment in time there is no suggestion they are a danger to life.

Inspector: Move on to repair options.

Ms Wigley: Before we move on only other point that might be relevant what is the effect of the statutory designation on defective. Refer to appendix in Dyson report. Can we all acknowledge that one of the effects is to enable funding to enable compensation. Appendix E, the discussion there is about valuation and mortgageability. Looking back in 1984 act carried through to 1985 act was about reduction of value to have funding to entertain repairs.

I just want to check with Appellants that the designation of defective does not indicate a danger of life or unfit of habitation.

Mr White: It’s a legal submission. Mr Wells will give evidence on consequence for mortgages but I take no exception to the point Ms Wigley says in her first point.

Ms Wigley: Im grateful thank you very much.

Inspector: Inquiry adjourned until 11:55

(Missed some discussion due to connection problems)

46 Wordsworth Drive there has been movement within the foundations. They are both next door to each other. One below the other.

Mr Scott: It would need repair work as there is structural movement there. Depends on the signs internal. If same amount

Inspector: Dyson final report 2020 , section 4 at beginning. Page 17.

Mr Askew: Recommendations for Intervention.

Inspector: What do you mean by term structural redundancy.

Mr Askew: Implication that you have more members that you actually need is my understanding but as each individual joist is bolted to own specific precast concrete post im not sure where the redundancy comes in.

Inspector: If one column failed the design can cope with that?

Mr Askew: Given that each joist is supported by individual post, in theory the floor joist would go with it. There is a connecting member to bridge between the adjacent posts. Rather than everything collapsing it would effectively bridge between adjacent posts. This may be the logic behind 3 or more defective posts as you would lose the ability to bridge between adjacent posts.

Inspector: Thank you. Feasilbility of repair options. Mr Askew. Section 3, full, and Structherm system over the page. Whats involved and whether feasible and whether other options are available which could retain the existing stock.

Mr Askew: based on guidance by BRE. Full removal of all precast concrete columns and full replacement with load bearing block work. Total overhaul remove designated defective elements. Work externally excavate around perimeter to form new foundation. You would have to prop the floors internally to allow posts to be completely removed. That level of disruption internally is totally unacceptable for anyone to stay in the property whilst that works goes on.

Inspector: You’re essentially changing the property to traditional constructed property?

Mr Askew: With that approach. Load baring walls become like traditionally constructed property. By time you finish you are effectively looking at a new structure.

Inspector: If floor and roof can remain and be properly supported. Is that all that remains?

Mr Askew: Everything will be stripped and rebuilt.

Inspector : Internal walls?

Mr Askew: Internal Walls have defects within them so they would need to be removed and replaced.

(Further discussion surround specifics of removals of internal walls. )

Mr Askew: Research on Timescales suggested 6-8 weeks.

Inspector: What can you tell me about the Structherm system.

Mr Askew: I think I referred to it in my proof as one intended for use on Airey Houses. Externally applied cladding system and the structural part its suggested it has ability to span from ground floor structure up to first floor structure completely bypassing the precast concrete posts and that it would span from first floor unto roof level bypassing the precast concrete posts. I agree it adds degree of structural stability overall. In terms of horizontal loading but my understanding is it doesn’t take on any load bearing vertically. So still reliant on the precast concrete posts to transfer your roof loads and your floor loads safely back down to your foundation. It doesn’t to my mind address the internal issues that need to be rectified.

Inspector: It is a wrap around system which encases the existing columns. Is that proper protection for columns in what is missing from the existing system?

Mr Askew: I believe the intention of the system is to encapsulate it so there is no gaps in the system it upgrades the insulation of the building and weatherproofs it.

Inspector: You say that’s the intention?

Mr Askew: Im not familiar with the use of it but it’s been used several times and I’m assuming it does perform its role. It’s not for me to question its ability to work. Im not suggesting it doesn’t work in that regard.

Inspector: If your not suggesting it doesn’t work and if we assume it does. Is it sufficient to stop deteroriation of columns?

Mr Askew: It would halt any further deterioration due to ingress from rainwater, there is still ongoing issue if deterioration is occurring because of humidity in the houses. The Structherm system wouldn’t address that as that moisture is still present.

Mr Askew: When panels are removed and panels are inspected remedial works are carried out to posts.

Inspector: With remedial works to posts and then encasing. Would that be an effective way to treating the problems that Dyson have identified.

Mr Askew: To replace the elements with something that is not going to deteriorate further in the long run combined with the exterior cladding to the external walls only. That would rectify that but there is the issue of internals. Any precast concrete posts in my view has to be guaranteed that they are not going to deteriorate.

Inspector: Do you think there is an ongoing concern as long as their columns remain because of their age?

Mr Askew: I would recommend that they would need ongoing maintenance. I don’t think its as simple as putting the system around and saying its good for another 30 years.

Inspector: Could the removal of humidity be dealt with by removing humidity using extractors in bathrooms for example?

Mr Askew: I don’t think you could guarantee with certainty that you could remove all the humidity that would stop the elements deteriorating.

Inspector: Your view is the columns need to be addressed, where does it leave you with coming to a view that Structherm is a potential answer?

Mr Askew: If you have a Airey in relatively good condition but we are in a position where they have deteriorated despite not being exposed to rainwater. If you encapsulate the building in Structherm system You can’t guarantee that further deterioration won’t occur to the remaining columns that are currently displaying defects. Anything that is defective needs to be remediated. Anything that is left in place is ongoing maintenance risk. On that basis Structherm should be ruled out.

Inspector : thank you for that. Mr Rogers, I Like to hear from you re existing properties and how they should be addressed?

Mr Rogers: Mitigating the internal moisture or possible moisture ingress to concrete posts as done in all construction bathroom and kitchen moisture is mitigated by ventilation.

Inspector: There is two options with Structherm options. Low rise and high rise solution.

Mr Rogers: There has been no engineers report or structural report with the Structherm system in mind. Mr Askew is right there are two key methods of using it. But it is a bespoke system.

Inspector : Examples you refer to Scheme at Wrexham Aireys. I can see photographs of two storey houses there. One that has prefab finish and one has been altered. Using that as an example. What form of cladding is attached to that building?

Mr Rogers: That is Structherm SEWI system. All permutations of Structherm systems use the same panel. Its basically an insulation panel made from various materials, mineral fibre, polystyrene, it has stainless steel or galvanised steel cage running through it. Wire that is bent and welded into a cage structure that holds that insulation in place. Onto that we apply a render finish. Once it encases the cage its same principle of reinforced concrete. Its rock solid, it doesn’t move in any direction.

Inspector : How is it attached to the existing building.

Mr Rogers: Using example at Wrexham, it is hung on existing concrete statues.

Inspector: Looking at Wrexham photograph. Were they ship lap panels removed.

Mr Rogers: No. They remained in place.

Inspector: This is on the outside of the existing building.

There on the outside and fixed to the existing statutes and then built around the outside of the house and up?

Mr Rogers: Yeah.

Inspector: What about condition of existing statutes? Do they need to be addressed before you go any further? If defects have come to light.

Mr Rogers: This is where I’m not qualified to say. This is where you would have a structural engineer involved. They would have to examine the existing condition and determine whether they needed repairing or not. On the ones at Wrexham we had to do nothing at all. They were repaired in the 80s as part of the BRE designated defective. The government released a load of funding. Wrexham Council did the repairs then. We retrofitted the Structherm system on top and they have not been touched since the 80s.

Inspector : Thats one scenario, for example minor repairs that might need patchwork or larger works might be needed to columns themselves?

Mr Rogers: Another case study where we did 14 properties. They were repaired prior to our arrival as well. They replaced the columns with steel ones. We affixed ours directly into that.

Inspector: Have you had any where you needed to completely remove columns yourselves?

Mr Rogers: Never. At Wrexham the scheme was 250+ properties. Our portion was 150 delivered from 2016 to 2018. Out of 150 we were responsible for (there was another contractor that did 100) we did not have to make one single repair. The last time they were repaired was in the 80s.

Inspector: What type of repair have you had to do?

Mr Rogers: We’ve not done it we’ve never had to do it.

Speaking personal experience at Wrexham 150 - not a single repair.

Inspector: What about when prepared in advance for your work?

Mr Rogers: Yes, repairs have been done in the past like at Wrexham it was done in the 80s.

Inspector: The system that was used in Wrexham is that the kind of cladding system that you envisage could be undertaken at Oulton in Leeds

Mr Rogers: Absolutely definitely we have never come across one we haven’t been able to do. To put in perspective we have several buildings at our facility in Doncaster and our entire offices are built from it with no other support.

Inspector: Can you give me an indication of timescale Mr Rogers.

Mr Rogers: Typical Retrofit, structural element is 3 weeks inclusive of scaffold erect, enabling works, dismantling. Site cleanup. Wrexham was 6 weeks but we fully re-run them as well.

Inspector: Whilst work is going on outside the building. What is situation inside the house. Is there any disturbance? Any intervention?

Mr Rogers: Lots of noise, depending on type of boiler we will probably have to extend the flue as we add thickness too wall. Gas engineer would extend that and central heating would be off for a day. Power switched off momentarily whilst shift outside lights etc. Health and Safety issues if scaffold erected around property and its occupied. Make sure residents listen to brief.

Insepector: Are they always fully occupied?

Mr Rogers: Always yes.

Inspector: In your experience is this approach to dealing with problems of Airey houses. Can it always be applied or is there some circumstances where the Airey houses have deteriorated to such an extent its simply not applicable.

We have never found one. Worked in various areas. Im speaking on behalf of Westdale as the installer. Structherm never come across an area they haven’t been able to do. Off the ones they have done they have never had a failure. The Structherm structural system has never failed.

Inspector: Thankyou. Mr Lawton, Is there anything you want to add by way of our understanding and how it could apply to these houses.

Mr Lawton: If you use my proof and goto the last page. You can see the system can miss columns that have deteriorated. That can goto 3.6metres in length and span. Then render and finish can be brick effect or sunken?

Inspector: Does your system If a situation with defective columns if its reliant to be fixed to those.

Mr Lawton: IF existing columns need to repaired. Epoxy resin, for minor repairs.

Inspector: Based on other works needing to be done.

Mr Lawton: It could be a full replacement of a column.

Inspector: Would that work be carried out by other contractors.

Mr Lawton: Yes it would.

Mr Lawton: We have used the likes of Dyson and have used them before to do survey reports.

Inspector: Would the existing panels be removed?

Mr Lawton: We would prefer existing panels to be removed so we could understand what was needed.

Inspector: If inspection was required to the property. Mr Rogers estimated about 3 weeks for the cladding work. Presumably it would need to be extended.

Mr Lawton: Definitely. It would depend on the detail of repairs and how far the post defects are.

Inspector : What about the situation inside the property?

If serious intervention is needed to columns what effect if any would it have on the internal arrangements and the ability of people to continue living there?

Mr Lawton: We have never had to decamp, out of all the properties we have done we have never had to decamp a resident never.

Inspector: And does that include situations where you have had to do column repairs ?

Mr Lawton: It must do because the columns were going to removed and tenants decamped, the tenants would have been decamped whilst we were on site. I would have thought so? I have never known it.

I known one Property BISF in North East. But it’s never happened for us. There was one case where foot joints needed to be replaced but it was a different type of property. Never on an Airey property and we’ve done hundreds.

Inspector: In terms of external cladding that can be applied there are a range of finishes that can be applied. Have read render and brick finishes. Are there others? Is there a finish that can be applied which is similar to appearance to how they look now.

Mr Lawton: Yes, it is literally dash. A plain dash would make them look like the existing look now.

Mr Askew: In relation to repair resin. It is just going to patch. Filling hole with resin is not going to rectify a defect with steel corrosion. Mr Rogers statement that their system can span between to tolerate more failures. No commercial or local authority is going to accept a failure. You don’t tolerate a failure. I don’t think this Structherm system should make it more tolerable for a failure. If any members in there you don’t want a failure whatsoever.

Inspector: By spanning the weight is being transferred past that column.

Mr Askew: How does the load get back to the cladding system?

Inspector: Noted Mr Askew your points.

Mr White: Just want to ask Mr Lawton to go back in Mr Askews proof. Final Sentence. The defects are due to…

Can I get confirmation that you do get a structural engineer. Often as you have said before Dyson or someone to give recommendation on whether there needs to be repairs or not. Is that right?

Mr Lawton: It is.

Mr White: I want to ask in regard to para 11 of Mr Lawtons statement that paragraph 11 does not include costings of structural engineers, and their recommendations and the costs of them repairs.

Mr Lawton: The prices given are just for Structherm system.

Mr White: Thankyou.

Mr White: Can he identify which are private sector landlords doing these.

Mr Lawton: 99% percent are usually housing association. They usually have the housing stock.

Inspector: On that appendix, what does O and A mean?

Mr Lawton: No idea I can find out will be to do with our technical department. I will find out.

Mr White: I won’t object to him coming back to you to help the inquiry. I want to discuss para 11 in viability evidence.

Can Mr Lawton subject to commercial confidentiality give indication of costs of scheme implemented in Appendix 1.

Inspector : I just want to ask about point raised by Mr Askew. Consequence Spanning the columns when joist attachment and how it is addressed?

Mr Lawton: It would be down to structural report. If is says it can span that column then it will be done. If it can’t and it needs to be repaired then it won’t be done.

Inspector: So if its got to be repaired

Mr Rogers: Thats precisely the point. Mr Lawton talking about missing columns. In practice we don’t actually end up missing columns at all. All Dyson have looked at is where corrosion tends to occur at the base. You refer correctly for support for first floor joist. We generally won’t miss it. Support is given all the way across. Its down to engineer to sign off and whether he will put his name to it.

(connection issues)

Mr Askew: We are talking doubling the load on theoretically defective design? For that load to find a new path. It doesn’t dictate that the columns would be able to withstand sorry 50% more load.

Inspector: If professional expertise of a structural engineer inspected every column on a case by case basis and indicated it could be done would that satisfy your concern?

Mr Askew : We’d have to see who was making that but yes if it was inspected on a case by case

(connection issues)

Inspector: ……Have you actually run it through to demonstrate what would be the case.

Mr Wells: I haven’t sir No. I think the business plan of the vast majority of commercial freeholders in this estate would be to sell the dwellings rather than rent them. I shown you even at 650 pcm and 750 ppm for 3 bed the rental is less than 5% yield. That is a very low yield.

Mr Wells: I said existing houses would need a 12% yield given the risks and the refurbishments. 5% falls well short of the hurdle would be.

Ms Wigley: Do we have any where before the inquiry evidence of the marketing excercise and the terms offered to the housing associations?

Mr Wells: I don’t believe we do. I have an email from my client. It sets out a letter sent to 27 housing associations inviting them to offer. I have note from client of the responses. I would have to check with Mr White but I don’t see why it couldn’t be put into the inquiry?

Mr White: You can absolutely do that but I would need to seek my clients consent.

(connection issues)

Ms Wigley: I’m not saying its entirely new, I don’t think there was any detail of what was offered in terms or who was offered. I don’t think its before the inquiry but if we can see that and ill park that for now.

Ms Wigley: If you do a 16.3% profit its a saving per house of £35,351 which equates to £28,134 refurb cost or in latter £26,149 and that’s before bathrooms and kitchens and everything else. Can you check Mr Wells if we are right on our artithmetic.

Mr Wells: I would be very pleased to check that. But I would say that the range between 15-20 in the MCHLHG guidance is almost always in relation to new development

The profit on my professional judgment would be at the 20% level and its probably higher than 20% but I’ve kept it within the guidance. Fact is we are not dealing with house builder territory. Refurbishment if done by Pemberstone wouldn’t be done at house builder profit levels. Which are 15-20%. The 16.3% delivered from the new development option is a new house building profit. I will check arithmetic but I wouldn’t want you to think I find it acceptable that 15% would be at what a private investor would do this at.

Mr White: Ms Wigley can you email them into the inquiry.

Ms Wigley: Yes I will do that.

Ms Bell: Curious about 5% yield figure set out in para 94.

Curious to understand as to how that figure has been derived by comparative yield rates with housing association projects and similar .

Mr Wells: This is not a housing association project.

HAs have low cost borrowing and different motivations for investing in real estate. I am looking at commercial return for commercial operator who has to borrow money to refurbish this. Looks at rate of return alongside baskets of other returns that they could invest in. Commercial property is soft at the moment. Residential property less attractive than it was. Residential investors are leaving the sector due to building safety acts post grenfell. It shows the government clear intention that they want to make housing safer.

Ms Bell: Thank you your table 9 and 10. Where you add various refurbishment costs. Appreciate it is a broad brush excercise. Would I be right to think that what hasn’t been modelled is the scenario in relation to the two properties in green.

Mr Wells: You are correct. I have included all 70 here. I haven’t distinguished between Red Amber or Green. You’re correct.

Mr Rogers: Question on Table 9, the total £108,000. Probably me but you have VAT on refurbishment items at 20% and professional fees at 20% but I can’t get them to stack up.

Mr Wells: I understand you’re difficulty. The items which have brackets afterwards that say if required. I have assumed only 50% of the houses will need that. You will need to take half of that sum to get to the figures I’ve used.

Mr Rogers: Is that the same for professional fees?

Mr Wells: Yes it is.

Mr Rogers: The figures look very high. 5892 window replacement we would be able to do it for 3500 supplied and fitted. We are competitive and its often the case that we don’t win the tender. External doors. £1000 a door. We supply 400 a door and supply and fit 200. Scaffolding we do every day. For a 6 week hire period. Looking 1000-1200 alone. Those items mentioned alone I can take 5-6000 pounds off the estimate which is a low.

Mr White: Before Mr Wells jumps in can I just say that Mr Rogers and his team have had these figures for four weeks and its completely new evidence for the first time. Completely valid that Mr Rogers has this view but it is a shame if Mr Wells didn’t have time to consider it.

Mr Rogers: Fair, I wasn’t planning on doing it. Figures are jumping out at me now. Obviously one thing to bear in mind we are a commercial company and a profit making company and I can’t devote all my time to this inquiry.

Mr White: Not a criticism of you Mr Rogers.

Mr Wells: As a professional person myself and in preparation of evidence as an expert for a public inquiry I have to use professional assistance where it is available. Using a chartered quantity surveyor they obtain their costs SPONS / BCIS comes to mind and established costs.

Mr Rogers: One thing I will say about SPONS are not testing the open market on a regular basis. Spons will be a last resort for me due to its accuracy.

My Lynch: Ive no basis for questioning Mr Wells but just make observation that he has stressed his modelling has been exclusively on the basis of Commercial consideration and viability in those defined terms.

Mr White: Not good enough, Id like Mr Lynch to say why he makes that point.

Mr Lynch: Not driving at anything. Im just noting with interest the distinction made by Mr Wells. The question of viability he has made clear. Im just noting it with interest.

Mr Wells: May I just make 1 point. I do accept that Mr Rogers and others could do these works for less if they were tendered out. First point would have to be very considerably less to get to the viability threshold. Its not 5-10k off the low. By my sensitivity analysis they would have to be some 41k less.

The second point if the works can be done significantly less. Lets say the Structherm cost of maybe 17k-20k plus VAT and fees. Cost of maybe 40k. If a private investor was expected to pay 40k for that they would expect a return on their investment. Multiplied by 70 houses. 40 x 70 is 2.8 million. If you say rate of return in the market is say 6% private concern has to recover £168,000 a year to pay for his investment. Now if tenants are to stay in situ the rents would have to rise by at least £200 a month per dwelling to deliver that extra return on investment. I don’t believe from the evidence Ive heard from saveourhomes that the tenants could afford to pay an extra £200 a month rent.

Thats the difficulty everyone finds themselves in here is that. The impact by the tenants would be felt. Unlike Wrexham council who doesn’t have to worry about the return this commercial concern at a modest rate of about 6% the rents would have to rise.

Inspector: Can you move onto Option 3.

Mr Wells: Yes that is the sought for planning consent which would give 70 dwellings on the site. Nearest development of any scale. Barrat homes at Methley is similar. You see from Table 11 evidence taken £280 per square foot. New build value £258.00 per square foot. Residual value. Appendix AWW4 BCIS Rate. Profit 16.29% which does fall in band of acceptability. 11 protected tenants who will move to new homes they enjoy statutory protections in their new homes and an investor or developer only get a discounted price for that because of statutory protections.

Mr Wells: Taking Pemberstone proposed phasing plan. To stay in existing houses until the first 11 dwellings are built. One move to a new dwelling, would be larger, more energy efficient and probably more pleasant.

Mr Wells: It is clear that any Commercial concern would pursue seeking planning consent and to deliver option 3 for delivering most value for their shareholders.

Inspector: struggling to equate figures in Appendix 3.

Mr Wells: I think it is because AWW3 does not have the discount necessary for the re-housing units.

Inspector: They don’t match do they?

Mr Wells: They don’t match no. Id like to check it in the break and come back to you and if I need to re-issue a new appendix 3 and 4 I will happily do so.

Inspector: In terms of option 3 or 4 Ms Wigley do you have any points of clarifications with regards to that.

Ms Wigley: We are not suggesting that developer would think refurbishing was more profitable that redevelopment. If redevelopment was not available and planning could not be obtained to rebuild and redevelop and the Structherm system could be done at 20-28k for 20k for Structherm system and extra 6-8k for structural repairs. Gives a yield on my arithmetic of between 15-16% Appreciate that is not what a developer would be looking for. But in situation the owner finds itself it would be a viable outcome a rationale thing to do and continue to rent them out or sell them on to rent them out or sell them on to a HA. All those outcomes are rational. I’m not suggesting a commercial developer would want to buy the site on that basis but given that may be a situation you find yourself in you may not have planning permission. It would be a rational thing to do wouldn’t it?

Mr Wells: No I don’t think it would be rational. If we have to go down a Structherm solution ok we go with Structherm. You would not undertake a Structherm solution without improving the interior of these dwellings. They are dated, they are unmodernised. There are all kinds of words you could use. Some no central heating, possible asbestos, rewiring, replumbing and damage to internal walls. Them things get added to that 28k very easy to see how you get to 50-60-70k to do a proper job. I don’t think its rational for a commercial investor to think they would do a half job.

Ms Wigley: We may be at cross purposes. My understanding the 28k im suggesting compares with your 61500 from Dyson and you factored in additional improvements in table 9. They all form calculation of loss of 732k on my artithmetic im comparing like for like including all internal improvements at 15% profit you still have a scope of replacing £61500 with £28134

Mr White: Its grossly unfair to put figures to Mr Wells for the first time…

Ms Wigley: I’m not asking him to accept the arithmetic on the hoof I’m asking him to accept the premise that like for like difference.

Inspector: Two cornerns. This is getting very detailed to come in at this stage and this could have come in as rebuttals at this stage. Secondly its getting like cross examination.

Ms Wigley: I apologise I should have sent them over last night. Can I deal with it like this. Im not trying to ambush anyone. I will provide the email with the figures and ask Mr Wells to consider the question overnight. Its an important point to properly assess the difference between repair and refurbishment costs. If you would enable me to do that id be grateful.

Mr Wells: I think you unfairly compare Stuctherm solution with the Dyson solution as being similar result. The fact is Structherm solution is good for 30 years. The Dyson solution is good its brick outside walls its good for 60+ years. They are not the same. Whilst housing authority a local authority may be happy to accept a 30 year extended life through Structherm. A private investor would do a proper job not meaning that Structherm isn’t proper but this is a comprehensive job which would come with a fully mortgageable life no quibble 60+ year life to be sorted once and for all. The other point The Structherm quote you keep mentioning is on caveat that Structherm require the posts to be in good repair. There has been no report from Structherm. Dyson has identified a higher cost. It hasn’t been properly cost.

Ms Wigley: I understand that, but if you could agree sensitivity test of 15% and 16.3% as I think it may be relevant to rational if planning permission is refused.

Mr Wells: I would like to do it at 20% as well.

Inspector : If you email Mr Wells the figures and he will take a look. Thank you.

Mr Rogers: Dyson survey on the condition Mr Wells says it has been examined at Oulton properties. It’s not strictly true it hasn’t been with a view to fitting the Structherm system to it. For all we know the higher up could be intact and able to have Structherm system attached. It’s not the right test as to whether the Structherm system is or is not suitable. It’s irrelevant. We don’t know. It was repaired and done by same funding at around same time as Wrexham.

Mr White: It’s common ground that Structural evidence is required before Structherm can be considered.

Mr Rogers: Agreed.

Inspector: That covers option 3. What is basis for SaveOurHomes position in terms of Costs and Viability.

Ms Wigley: If I could ask Mr Rogers and turn to Mr Lawtons Paragraph 11.

Mr Rogers: 17-20k Structherm system including enabling works (growth, ivy, shrubbery, fences adjacent to the wall moved temporarily, outside taps, lights boiler flues. All things close to the wall. Inclusive of scaffolding. Starting point. Figures based on Wrexham. Plain render finish and brick finish. Worst case in costs. If dash based finish we could probably save uptown 1k for that.

Inspector: It would be appropriate to replace old windows?

Mr Rogers: It is not in my remit to say what clients should do with their properties. Im not against Mr Wells when he said if you were selling the properties you would do the works identified. I commented on windows earlier as a Ive seen a number of wooden ones and they do look like they have seen better days.

+ Professional Fees for Structural engineers

+ costs of repairs

It can be used in exactly the same way as Dyson repair and its still far cheaper than laying bricks and mortar.

Ms Wigley: Can I ask you to comment on brick and mortar on terms of life span.

Mr Rogers. It can be 2/3 cheaper than brick and mortar. It’s same principles of how new builds are being made now. When talking lifespan It’s only been tested for 30 but we have every confidence in 35 years we have not had a single failure, and therefore it will last for much longer. The only reason its not certified for more is because we didn’t have it tested for more. Ties in to Mr Wells said about primarily working for social housing clients who never needed more than 30 years. The other argument is on the birthday of its 30th year it failed you can replace it time and time again before you have spent the same money on brick and mortar.

Mr White: Have you ever known any commercial property owner take that approach. 30 + 30 + 30 approach.

Mr Rogers: I’m not old enough sorry, but in theory you can take it off and re-apply it.

Mr Wells: Structherm solution is as we heard principally for local authorities. I assume there is a 30 year certification and warranty on that. The 30+30+30 would certainly not be acceptable to a high street lender. If may I ask what is the solution with Mortgageability with Structherm solution.

Mr Rogers: In mid 90s, prior to acquisition. We had agreement with Norwich Union and selected lenders. Since the 90s building regulations changed. Construction for our boards has changed as thicker boards. We didn’t get the boards re-tested and have U rated applied and social housing haven’t needed the mortgage. They are not mortgageable currently. We recognise the need but we have not had the commercial interest to warrant us getting them lender agreements in place again.

Westdale Group purchased Sturctherm in 2016.

Mr Wells: Structherm solution is not currently mortgageable. That is a very serious commercial concern.

Mr Rogers: We agree completely, and I dare say that before this is all concluded it will be mortgagble once again but right now it is not.

Mr Wells: Deeper LoantoValue though there will be quite a gap. There are mortgages you can get on them now but the LTV equates to the land value. Totally agree.

Inspector: Mr White any further questions.

Mr White: No thank you very much sir.

Ms Bell: No thank you sir.

Ms Wigley: Thank you sir.

Inspector: Everything they want to say everything about viability.

Ms Wigley: Except for my email to Mr Wells asking him to comment in the morning, or to verify its accuracy at least?

Inspector: I see from timetable from tomorrow I am expecting to be here from half 9 and I can answer her questions tomorrow after looking at the maths tonight,

Ms Wigley: Would be helpful.

Ms Bell: It would be helpful to see Ms Wigley maths and the council would be keen to see what was mentioned about housing providers offered.

Mr Wells: Just remembered in officers report in application refer to study by University of London. Para 5.8 of that report. Document 0705. I just put that in there as well. In document pack item 0710 letter from residents action group that Airey construction type is difficult to deal with.

Whilst full surveys have not taken place estimated costs to bring repairs unto standard could be £45k per property. CD710.

Inspector: Inquiry has adjourned until tomorrow at 09:30am

Judicial Domicide would like to thank SaveOurHomesLS26 for granting permission to us to use the feature photo.

If you would like to donate to the SaveOurHomesLS26 campaign please click here

DAY 1: Pemberstone v. SaveOurHomesLS26

Jay Dee — Tue, 06 Oct 2020 18:00:00 GMT

APPEAL REF: APP/N4720/W/20/3250249
SITE: DEMOLITION OF [70] EXISTING DWELLINGS AND ERECTION OF 70 DWELLINGS - WORDSWORTH CLOSE & SUGAR HILL CLOSE, OULTON, LEEDS, LS26

The Planning Inspector has confirmed at the preliminary part of Day 1 of this appeal inquiry that no objections have been raised with regards to us ("Judicial Domicide") live tweeting the Planning Inspectorate Appeal Inquiry. We, ("Judicial Domicide") must state that this is not intended to be an official, accurate, nor verbatim transcript, but it is recorded here by us to serve the purpose as a true record of the inquiry hearing(s) as we observed and recorded. We have compiled the below from live tweets and our fast notes taken during the observation of the hearing. There are also areas where we did not observe and/or we had connection issues which resulted in the loss of being able to observe.

This is Day 1 of the Appeal inquiry of Pemberstone v. @SaveOurHomeLS26. We will use this as the thread to tweet anything we feel is substantial. We will do our best to cover the main points but must clarify we have not *(at the time of writing 6th October 2020) been provided with any documentary material or timetable of events. We are somewhat blind therefore of the format of these proceedings and how it will take place.

Top Left: Ms Wigley (Counsel for SaveOurHomesLS26), Top Right: Mr Richard Clegg (PINS Inspector 64), Bottom Left: Ms Bell (Counsel for Leeds City Council) and Bottom Right: Mr Sasha White QC (Counsel for Pemberstone)

For the Appellant (Pemberstone) is Sasha White QC who will be calling 6 witnesses.

For the Respondent: represented by Jenny Wigley and she intends to call 6 witnesses. Which will include 1. John Lynch (Planning Consultant) 2. Chris Kitchen (National Union of Miners re Heritage) 3. Tyrone Lawton 4. Joe Rogers 5. Cindy Redman (current resident) and 6. Karen Bruce

For Leeds City Council Represented by Constanze Bell who will be calling 3 witnesses. 1. Jerry Tinsdale 2. Mark Teesdale (effect on community) and 3. John Brooks (planning matters)

71 New Dwellings - Amended to 70 dwellings by County Council. Subsequently there have been amended versions J and G submitted to address objections of garden sizes. Views canvassed and there are no further objections noted.

Inspector: Received copies of notification letters that council sent out to interested parties. Received a notice from @SaveOurHomeLS26 re Rule 6 status. @SaveOurHomeLS26 do have Rule 6 status. Not aware of any other organisation that has Rule 6 status in this matter.

Final versions of some documents have not been submitted. 1 document agreed would be completed before Friday, another document would be agreed by close of proceedings today.

Mr White: no further evidential documents to submit.

Ms Bell: circulated on Friday a document re emergency lettings from a Ms Bradshaw appeals team. This document is re emergency lettings policy no more than 4 pages.

Inspector: confirmed council specifically requested this document as additional appendix and was given number A2

Ms Wigley: she appears to be missing the two recent appendices including A2 and she requests them to be circulated to her outside of the inquiry.

Inspector: 4 Main issues as he sees it: 1. Effect on local community of the loss of existing homes on appeal site. 2. Effect on (inaudible) heritage 3. Inaudible 4. Effect on any other consideration on overall planning balance

Inspector: 8 days allotted for this enquiry. 3 sessions of 1.5 hours each. From tomorrow all proceedings should start at 0930am.

Inspector: recap advice. 1. Connection issues. Mr Alford tells me connection issues on the whole can be resolved by leaving and rejoining. In event of major disruption we will adjourn proceedings and resume.

Inspector (contd) 2. Despite what is said if documents do need to be sent they should be sent to Mr Alford who will ensure I have them.

Inspector (contd) 3. The chat facility must not be used and it will not be monitored. It also affected the recording and no participants should use chat facility.

Inspector (contd) 4. Do not leave or log out during adjournments. Please only log out at the end of the day.

Mr White: asked about agenda for roundtables and Inspector conformed there was no detailed agenda for roundtables on this occasion.

Ms Wigley: raises point that the latest version of timetable that mentions site visit has not been seen by her. Ms Bell confirmed she had also no seen sight of the latest timetable (version 3)

Inspector: there is nothing to surprise on the latest version and that it is broadly the same document with the exception of a caveat added on page 2 re session times.

Inquiry will adjourn and resume at 11:20AM

Inquiry has resumed.

Inspector: the recording of this session by HM Planning Inspectorate will be used strictly for internal purposes and will not be made available for any parties that request it.

Mr White (Counsel for the Appellant - Opening Statement)

Mr White: (Para 2 of my opening statement): My clients seeks to build on its own land 70 residential dwellings. That would replace existing construction homes that were designed to be temporary this is not done in anger or greed but out of necessity.

Mr White (contd): Do nothing option: This is not an option

Problem will worsen.Pressing need for cheap and quick housing. Planning framework is overarching on the grounds of consent. Only application reliance on a policy that was never relied upon as a developmental planning.

Mr White (contd): LPA - section 149 of the equality act. Note on the effect on the community on the loss of their existing houses. Thrust of LPA case that in particular those with protected characteristics. Clear concern of the council is those with protected characteristics.

Mr White (contd): 18 households that hold Protected Characteristics, 7 of 18 have regulated or secure tenure. Some households have AST which can be terminated at any time by giving the appropriate notice irrespective of the decision of this inquiry.

Mr White (contd): Process is undertaken and due regard is to be had. Due regard to that action and its consequences. You can grant the appeal whilst still meeting the regard you need to have.Balance between rights of private landlords and their tenants.

Mr White (contd): The freeholder my client has received advice that the structural nature of these properties are compromised and tenants completely understandably have concerns over losing their homes.

Mr White (contd): Private sector tenants all but 11 households have limited security of tenure. All but the 11 could be given notice to leave.

Mr White (contd): Level of work required to be left in situation whilst work can be refurbished. We say it can not be done. It would not be commercially viable. No evidence of viable refurbishments

Mr White (contd): Vacant possession is required and can be obtained through effective notice requirements regardless of the outcome of this inquiry. These are private sector tenants - it is unfortunate that they will lose their homes but...

Mr White (contd): ...they will lose them simply because they are private sector tenants and the law permits that and there is no reason for it to be weighted into the planning decision.

Mr White (contd): These properties are airy construction method a method that was designated as defective by design. As a result it is not possible to secure commercial mortgage for properties of this type.

Mr White (contd): 4 Areas of law that are highly relevant: 1. s.38(6) application requires material considerations - which we all agree there are. The matter of weight given to each case is a matter for you as decided in Bolton Case of 1991. Presumption in favour of development

Mr White (contd): plan. That presumption is rebuttable as per Stratford?? case. Law requires you to consider all points. Development plans may pull in different directions. Good exposition in recent Cornwall development case. Doesn't change statutory status.

Mr White (contd): Alternative proposals: 1. Do nothing 2. Refurbishment and 3. Sale of the site. harm does not outweigh benefits. only exceptional circumstances would it be acceptable for alternative proposals to be had regard to.

Mr White (contd): They should not be given sufficient weight to defeat our application.

Mr White (contd): Legal Protections: Entirely unaffected by grounds of planning refusal or consent. Cole v Suffolk County Council reiterates the principles.

Mr White (contd): Proposal complies with

H5 - 15% requirement is met by 11.

- Accessible standards complied with

- Design is complied with

- EN1 is complied with

- EN2 is complied with

- EN8 electric charging of vehicles complied with

- SP1 - complied with

Mr White (contd): - Affordable housing is complied with

- Residential amenity is accepted

- Fully compliant with internal or external space

- 68/70 of the properties needs structural work

Mr White (contd): 11 Propositions:

1. Site is developed sustainable housing site

2. Site needs urgent solution as nature of existing state of houses do nothing is not an option

Mr White (contd): 3. Refurbishment option is not commercially viable and would not ensure that tenants would necessarily remain in their existing homes

4. Proposed redevelopment is compliant

5. Proposal benefit 11 affordable housing units

6. Reuse of previously developed land

Mr White (contd): 7. Accesible by all forms of transport

8. Reduce carbon emissions for running costs of future residents

9. Health benefits from improved housing stock

Mr White: (contd): 10. those 11 who have protected characteristics will be re-housed in better accommodation than what they have currently.

We apologise for 1. Our inability to keep up with live events and 2. The inaccuracies of our notes as we tried to keep up with fast paced advocates.

Ms Bell (Counsel for Leeds City Council - Opening Statement)

Ms Bell: (opening statement on behalf of Leeds City Council) Pemberstone seeks the demolition of existing dwellings occupied by tenants on the open market. 11 have protected characteristics (PC). 45 short let. 14 are vacant.

Ms Bell (contd): our refusal at para 3 and para 4.

Para 4 relating to garden sizes has been withdrawn as a new plan has satisfied the issues previously raised.

Ms Bell (contd): Displaced residents and community dissipated. Will harm all residents and those with Protected Characteristics. Culture of this community will we say be dismantled if granted.

Ms Bell (contd): Airy homes - psycho-social harms arising from development are such that they are not sustainable housing considerations. LPA due regard should be had on existing residents protected characteristics

Harm to local community and particular to those with PC

Ms Bell (contd): 141 residents living within the appeal site.

14% or 11 residents would be rehoused 121 would have to be rehoused or rehomed elsewhere.

Ms Bell (contd): All 39 children would be permanently displaced. 16 disabled residents (66%) of disabled residents would be displaced.

Ms Bell (contd) In terms of affordable housing to be offered on site. If a local lettings prioritised Protected Characteristics it would still not be possible to house everyone of a protected characteristic. There simply wouldn’t be enough homes to meet the number of households.

Ms Bell (contd): Equality Duties 2010 - integral and important mechanisms of anti age and discrimination. Section 149 as appendix and core document 0706. I don’t propose to read out that section.

Ms Bell (contd): Para 21. Where I turn to matters of case law

1. Quality duties are important and integral part

2. Steps seeking to seek to comply with statute.

3. (missed)

Ms Bell (contd): 4. Assess risk and assess impact and a way of which risks should be mitigated case of Brown. Due regard to relevant matters. Duty must be fulfilled before and after time considered. With Rigour and Open Mind and not a case of ticking boxes...

Ms Bell (contd)...Duty cannot be delegated and it is a continuing duty. Good practice to keep records of that continuing duty.

Ms Bell (contd): Officials advising must not merely tell decision maker what they want them to hear.

Due regard, proper and conscientious regard for all matters and reconcile them in the balance and it is for the decision maker to decide what weight he is to give them.

Ms Bell (contd): UN Rights of a Child

LPA given number of children on site adverse impact on them children and legal duty arises because must have regard to the best interests of the children and the best interests interests of the children are clearly with their parents.

Ms Bell: (contd): Parents and Carers are opposed to this appeal. Consideration weighs heavily against proposal.

Human Rights Act (HRA) s.1, unlawful for a public body to act in a way that contravenes a convention & includes UN Convention on the Rights of the Child (UNCRC)

Ms Bell (contd) HRA Article 8 rights to respect for private and family life are to be engaged as this is application is regarding domestic planning contact.

Ms Bell (contd) re Justice Higginbottom: art 8 doesn’t give a right to a home or a right to a home in a particular place. Where someone has a home it may be engaged if they are required to move. Where they are in play in planning decision they must be taken account of...

Ms Bell: (contd) ...and be balanced accordingly. (Discussion of deference and margin of discretion legal points) Cases where court will interfere is likely to be few. LPA does not accept this view.

Ms Bell (contd) Where they are engaged they are a material consideration and need to be considered as such.

MS Bell (contd): To contribute to sustainable development it must meet the Social objectives to social, health and cultural wellbeing. The planning balance indicates that this application should be refused.

Mr White: Not happy HRA Art. 8 point has been introduced, he says, for the first time. Not made aware by LPA of this in case statement. First time in opening and was without notice that it was being made. Frankly it has significant implications. Mr White is Distinctly Unhappy.

Ms Bell: It has always been engaged.

Ms Wigley (Counsel for SaveOurHomesLS26 - Opening Statement)

I represent @SaveOurHomeLS26 My submissions are: This application will have a devastating effect on Sugar Hill Close and Wordsworth Drive. The schedule is demolition of all existing homes and has impact to their health, social and economic wellbeing

Ms Wigley (contd): Appellants intend to move them elsewhere during the move which would be not one but two moves. Community is diverse in age and has long standing tenants.

Ms Wigley (contd): Medical practitioners and care providers work closely with the residents & especially important for elderly residents. The houses that are to be lost are highly valued by the existing tenants.

Ms Wigley (contd): The tenants see them as spacious laid out homes with good gardens and access to countryside. Original ethos has survived over decades. The loss of these homes would cut across the planning framework?

Ms Wigley (contd): Important in planning not only talking but listening to what the community, what it actually needs. Development acknowledged for benefits it may bring but this must be looked at through prism of the loss of 59 genuinely affordable homes.

Ms Wigley (contd): The waiting list in the area is currently very long. There is hardship in trying to find affordable homes. The on mass eviction would put extra pressure on already stretched resources of local council as it trys to meet the demands of mass eviction of residents

Ms Wigley (contd): The carbon footprint for demolition and rebuilding would take over 20 years to be balanced with the low carbon homes being offered by Pemberstone.

Ms Wigley (contd): Everyone has a right to a decent home that they can afford. A rational approach would be to renovate the properties whilst the tenants can simultaneously be able to live there. We will hear in evidence from a company that has experience with refurbishing airy

Ms Wigley: @SaveOurHomeLS26 reject that the notion that refurbishment is not an option.

Lunch Adjournment

Resume from Lunch at 13:45

Inspector: Is it that Policy P11 is relevant for this application?

Matthew Shepard: Yes that is relevant. N14-N17 are listed buildings are are not in play. Conservation area not relevant as not in conservation area. P11 is relevant.

Inspector: P11 doesn't just deal with undesignated assets but also deals with locally significant assets?

Matthew Shepphard: Yes I think that's fair they are of local significance only and dealt with in our evidence as that.

Matthew Shepphard: General Agreement on dealing with Non Designated Heritage Asset and start with NPPF para 197 and we start here. It says when weighing up applications that directly or indirectly affect those have to apply balanced judgement when weighing up scale of harm

Matthew Shepphard (contd): or loss. NPPF para 199 talks about recording. Suggested a condition on preservation and recording of historical/heritage significance.

Matthew Shepphard (contd): purposes of para 199, LPA ask dev to record advanced understanding of the significance of assets to be lost (wholly or in part) in manner proportionate to their importance and to the impact.

Matthew Shepphard (contd): and to make that evidence publicly accessible. There is a condition that proposes to deal with that if planning permission is granted.

Matthew Sheppard (contd): Core Strategy Policy P11- relatively long policy can be found at core document 03.01 its p.131 of 213 in the pdf, but in the printed copy pagination is 108.

Roundtable:

Dr Ramona Usher (Heritage Witness for Appellant Pemberstone)
Mr John Kitchen: (Witness for SaveOurHomesLS26)

Dr Ramona Usher: Registered Park and Garden Coloured Purple - 104103 - National Heritage List.

Oulton Hall. Farmhouse listed 130024 listed farmhouse on top of periphery. Not actually registered inside the park. Grade II listed building.

Inspector: Is there anything to suggest the appeal site is within the setting of those assets?

Dr Ramona Usher: I would disagree, its adjacent but it doesn't necessarily fall that it is meaningful.

Mr Kitchen: I agree the LA are relatively neutral on the point.

Mr Lynch: I agree also.

Inspector: Page 44- extract from ordnance survey - appeal site outlined in red to the north of that is another development. I take it that is the full extent of the original housing estate at Oulton drive.

Dr Ramona Usher: Original housing estate was laid out by Garden City movement. came about after first world war. open space and gardens were seen to be quite rewarding to health. loosely based on those principles.

Dr Ramona Usher: We only have a remanent of the original estate. To the north and north east a very late part has been redeveloped.

Inspector: Mr Lynch & Mr Kitchen or @SaveOurHomeLS26 do you wish to say anything about the original extent & form of estate at Oulton.

Mr Kitchen: Original layout there was 3 distinct parts of which community cohesion was designed to foster community spirit and to keep mining heritage of mining workers. 3 distinct sections. The largest has been redeveloped but it does not take away the whole of the design

to foster community.

Dr Usher: Sir, there is a stream and the divide is geographical sub division and to infer anything else its absurd to my mind.

Mr Kitchen: Original developement as a whole was if you like 3 separate communities in a whole but there was no designations between officials and surface workers. The Whole idea was equal opportunities for all

Mr Kitchen: The houses were built to equal standard to be same as or better than what was provided by local authority. That was all laid out in the 1950s vision for rehousing of mine workers from areas where there was closure of mines to areas where there was a shortage of

mine workers, which was the reason for this [original] development.

Inspector: Rationale for this area of development are you saying it was shortage of labour and need to bring people into the Leeds area?

Mr Kitchen: Yes, LA could not accommodate the influx of workers required for the mines in Oulton where production was increasing. Although Coal board preferred view was LA to provide housing where that wasn't available the Coal board under persuasion of the gov't of the time...

...put in 80 million pounds to do their own developments of which the Oulton estate is one of those done by the Coal Board to facilitate relocation of miners from NE and Scotland on mines that were closing to longer term in Yorkshire to man up as shortage of man power.

Inspector: Is there association with this development and Rothwell mine?

Mr Kitchen: It was to the north and to the north west, well north north west on the map.

Dr Ramona Usher: with all due respect, we do not dispute the local heritage significance. We don't by any means. In evidence I've acknowledged them as non-designated heritage assets. The issue is not in dispute.

Dr Ramona Usher: (contd): beyond heritage issues these buildings I'm afraid are a threat to human life and that's outside of my scope in terms of 1985 act. People could die if these fell down, but its outside of my heritage scope.

Dr Ramona Usher: (contd): an order to refurbish these properties you would end up in the loss of the architectural aesthetic value.

Mr Kitchen: I take umbrage with Dr Usher saying these are a danger to life. I was brought up in a Pitt estate? where the houses were a danger to life, insulated with compressed straw. Someone smoking in bed and two people died and that estate was demolished.

Mr Kitchen: (contd) this is not the case with these houses. These houses are not a danger to life and it should not be said.

Inspector: I wish to move onto the reasons of why they consider the houses on the estate to be of local significance.

Mr Kitchen: Within our industrial heritage the mining community part of the heritage was the provision of social housing. It was social housing. It was designed to be socially inclusive, designed not just to house workers, like old mining cottages it was designed specifically...

...to foster community. You had to have community as you had to work together and you had to get on. coal board put a lot of money, time and effort into social recreation and wellbeing facilities into these communities.

Mr Kitchen: Unfortunately it's a bit like beauty "its in the eye of the beholder" everyone will recognise Selby Abbey as a great architecture that needs to be preserved or houses of parliament unfortunately in my mind these houses, not the actual dwellings, and the look of them

Mr Kitchen (contd): but the social history of why they were built and where they were built to house the miners that were asked to relocate. The way they were built to re-enforce a community, in my mind, that is something that does require protection. It is industrial heritage.

Mr Kitchen: (contd): The Oulton estate does show that that works. We have got a community there. We have a collection of houses.

Mr Kitchen: (contd): Part of the estate was given up for redevelopment but given up on the understanding that we would retain Sugar Hill and Wordsworth Drive going forward.

Mr Kitchen (contd): As with traditional constructed houses, you need to repair and you need to update. A house built in 1960s would not have today's standards of bathroom or fitted kitchens and they do require updating. They may require a roof change or windows in pvc

Mr Kitchen (contd) but to my mind, when you take it as a whole. Its an important part. Not just the individual dwellings, the houses, airy houses, the airy company being based in Leeds, yes that's important but the reason why they were built and where they were built,...

Mr Kitchen (contd): ...the way the houses were laid out. The fact it had to be equal or better standard than local authority houses, they had to have decent sized gardens where families could meet. Unfortunately events have overtaken us, with the coronavirus pandemic,

Mr Kitchen (contd)... it's even more important to have an open space where you can meet socially but be socially distanced. These were ahead of the times they were built with gardens. You didn't have bedsits or flats. They were proper homes with decent facilities and gardens.

Mr Kitchen (contd): and that's what I believe will be lost. They were there for people who didn't aspire to go up the property ladder. It wasn't an issue that they couldn't get a mortgage on them, as it was never intended that they would be privately owned.

Mr Kitchen (contd)... They were built for the community, for the mining industry for the people who didn't want to saddle themselves with a mortgage. They didn't aspire to own their own property...

...They were quite happy to have a decent affordable house that they could bring their families up in. And that's what we will be losing at Oulton, because we will not be replacing them for like for like.

Mr Kitchen (contd): We will be shifting what will be seen by some to be a lower type of class citizen out of an affluent area. It is well positioned as Dr Usher shown in her figure 1. There's a country park and the Oulton estate nearby.

Mr Kitchen (contd): good access to motorway for commuting into Wakefield and Leeds. Its an ideal development but it was never put there for that purpose and it should be retained for social housing.

Inspector: One of the things important to you is the reason it took place and its association with the mining community. Is there anything in form of construction and appearance of the properties that you regard as important?

Mr Kitchen: Former Construction was dictated by the need to build them quickly, because of the other mines shutting down. I was brought up on estate that was genuinely defective not designated defective to access funds to improve them. They were dangerous houses to live in.

Mr Kitchen (contd)... For that reason they were demolished they were not sold on to developers. The estate was flattened. I do believe there is value in retaining the houses for what they are. I don't see it as intrinsic that they have to remain looking the same.

Mr Kitchen (contd): construction was prefab for speed. Dr Usher goes back to I think 1800s in her evidence about construction moved away from prefab but actually government are going back to prefab housing. They are built in a factory and then put up on site.

Inspector: Thank you. Dr Usher I come to you now. Same point I put to Mr Kitchen - I'd like to understand why you accept that the airy houses are of local significance as a heritage asset. What is it about them that you regard as being of importance?

Dr Usher: They are of local interest, there method of construction is locally unique. They are prefab. They have concrete panels that are attached to goalposts then inside they are plastered (smirking visually) there is absolutely no insulation inside them.

Dr Usher (contd) ...I've inspected several as part of this appeal. Theres a rural airy house type which is what we have on our site and then there is urban type with flat roof. I do not dispute that these assets are non designated heritage assets whatsoever.

Dr Usher (contd) In order to bring them up to standard with 1985 act the recladding of these buildings removes their heritage significance.

Inspector: Your going onto something we will come to later. I want to clearly understand why you regard them of significance. Is it physical appearance and the form of construction? Is that why or are there other factors as well?

Dr Usher: They do have communal value as well, in terms of the coal mining industry and the original occupants who occupied them. Unfortunately two thirds were lost to redevelopment so we do recognise the communal value but its diminished by the redevelopment.

Dr Usher: Only 11 of the properties out of 70 we have left have communal value in terms of the coal mining industry. 11 out of 210 houses so we've lost that communal value.

Inspector: Why only 11 when there are 70?

Dr Usher: I will defer to planning colleagues in terms of their protected status of those occupants. Im not a planning expert, I am a heritage expert.

unknown? So that's a reference to their historic tenancy.

Inspector: There are 70 dwellings of that form Dr Usher?

Dr Usher: There are 70 dwellings of that form but they are very altered. In my professional opinion these dwellings will not be listed, included in conservation area, they have lost historic windows, lost their doors, the streetscape, they've lost the original paving around them.

Dr Usher (contd): Appreciate that the form of the buildings still stands there but it's actually quite disturbing that we would want to retain dwellings that are a threat to human life. They are historic building stock.Its only that, that has survived.

Inspector: You said alterations about doors and windows. I've seen some of that for myself. You also said streetscape. What do you mean when you say the streetscape has altered?

Dr Usher: we've lost two thirds of the estate by redevelopment.

Inspector: I'm only interested in the appeal site.

Dr Usher: There is no evidence of original street pavings or original pavements in that area. We have one third of the estate. We have lost that garden city decoration.

Inspector: Is that original form something of value?

Dr Usher: Its of local value, which is why we recognise it as a non designated heritage asset. It's not of national significance. These buildings are not going to be listed or part of a conservation area. We recognise they are non designated heritage assets we don't dispute that.

Dr Usher (contd) there are rules, there is no threshold of significance within non designated heritage assets such as substantial harm or less than substantial harm with regard to NPPF.

Dr Usher (contd) : we are looking at a non designated heritage asset and we don't dispute that designation.

Inspector: OK, can we move Dr Usher to the consequence of works to the 70 houses. If scheme was put in place to retain and refurbished, and there is more than one way put forward. What would be the impact on their significance?

Dr Usher: The architectural and aesthetic significance lies in their external appearance. In order to refurbish and bring them upto a remortgagable standard they have to be entirely reclad. Draw attention Plate 8 and Plate 9 of page 52 of proof of evidence.

Dr Usher (contd): same semi detached house in both photographs. local architecture significance is of that original construction. When that's been re-clad. It's lost its aesthetic and architectural significance. This is the conundrum with this case. They lose their significance.

Inspector: I understand forms of cladding offer a range available. If there was a form of cladding more closely resembling what was there at moment would that address the point you have made?

Dr Usher: I would say we would look to our structural colleagues but I cannot see some form of cladding that can replicate something like that. I do not see how it can be replicated in terms of modern building standards.

Inspector: Refurbishment then would alter the houses in the way you describe. Would it result in a total loss of significance? Or would there still be some significance in a group of 70 houses in any event?

Dr Usher: The significance has been massively diminished by the reduction of the number of houses when it was redeveloped. From 210 to 70 Airey houses. The estate is a remnant of these airey houses. we recognise them as non designated heritage assets but there are elements lost.

Mr Kitchen: If you look at plate 8 and plate 9 why we are talking about the porches. It has got a porch on it. 4 uprights and shield above door if you look at photograph.

Inspector: I think point was that the porch on modified house was less appropriate than one on original house.

Mr Kitchen: I think the point I was making was that you could put identical porch on original one on the other.

Inspector: I see

Mr Kitchen: The modernisation was that that was the desired porch which people wanted at the time of the upgrade.

Inspector: Mr Kitchen can you tell me your view on what you consider will be the effect of refurbishment that would be on the historical significance of these dwellings.

Mr Kitchen: I don't put as much importance on it as Dr Usher to be honest. The fact is the philosophy behind the building of the estate was to give decent affordable homes to people to live in and if we have to change the look of it, it will still be a pre-fab house.

Mr Kitchen (contd): The core will still be there. The main significance for me is not so much in the dwelling itself. They were designed to be modernised and to be lived in. It's more the reason why they were built, the way, the where and the use of the house.

Inspector: If altered by significant refurbishment Mr Kitchen would it affect the appreciation for the way in which they were built?

Mr Kitchen: 212 originally. Majority were given over to redevelopment. My understanding from the councillors involved in that planning at that time was that reason didn't give permission so that whole estate was redeveloped at that time was because they wanted to preserve it.

Mr Kitchen (contd): I agree that by allowing redevelopment we have diminished that and maybe that was a mistake at the time but we can't change history. But doesn't mean that its diminished to such extent that what we have left isn't worth preserving for social heritage.

Mr White: If point is being made. I ask my learned friend to substantiate that point as we haven't seen anything to support that. There would be committee reports at the time.

Mr Lynch: Alterations to appearance and how might affect heritage value. Everyone agrees that the heritage value relies on the social historic community interest and importance of the connections with the mining industry. It has evolved into a contemporary modern day community.

Mr Lynch (contd) which still to this day carries on the same original values. The aesthetics point its common ground I think not to put to much importance. Common ground, building type and appearance and social importance . Refer to Panel report of May...

Mr Lynch (contd) ...para ref 10.28 of that report. Councils conservation officer said "The importance of these houses comes not from their appearance but rather from their construction methods" my view is that if the houses could be retained with their community value intact...

My Lynch (contd): ...rather than being a transported museum piece in the North of England. I would think that the survival of the community value and retention of the basic structure of the houses is still an acceptable way of preserving such heritage.

Mr Lynch (contd) If there are to be external changes to the appearance baring in mind we are talking about non designated heritage assets not listed buildings. I think that is acceptable. I would say yes the heritage value still remains.

Mr Lynch: without pre-empting the discussions I think will take place tomorrow.

Dr Usher: Mr Lynch said heritage value is not from appearance but from construction method. Im flabbergasted at that. The construction method is inherently flawed. They are designated defective in 1985 act.

Dr Usher (contd): So if heritage interest is coming from constructive methods there construction methods are inherently flawed.

Mr Lynch: I wasn't making the point on my own behalf I was quoting the councils conservation officer. The houses that were designated defective some 40+ years ago are still there.

Dr Usher: I have to say, any houses, any homes, any buildings as a historic buildings professional with 20 years experience under her belt. anything that survives or just survives because its survives, honestly, ...

if you think everything of significance is a building that survives you are wrong. Its just because we have conserved it. There are a lot of buildings that have been lost over hundreds of years. Their construction method is the problem. I will not be deviated from that point.

Dr Usher: (contd) it does not mean that every single building should be retained as we can preserve them by record.

Mr Kitchen: I don't know the technicalities of the designated defective.

Dr Usher: (Loud Rude sigh)

Mr Kitchen: Well I'm sorry I'm not an expert like you.

Inspector: Dr Usher - please let Mr Kitchen express things in his own words.

Mr Kitchen: I'm a coal miners son that was brought up on estate and knows the value of community. I did 25 years service underground working in the coal mines. I'm not up on the planning permissions and stuff like that. My understanding from the area I live in there are council

Mr Kitchen (contd): houses that people couldn't get mortgages for when put up for sale so the council provided the mortgages. Those house were designated defective over 50 years ago and you couldn't get a mortgage on them but people bought them under the right to buy scheme.

Mr Kitchen (contd) and they are still lived in now, some of them with the original design still in tact with the tin roofs. I don't understand the importance of designated defective if it was done to access funding for local authorities or private landlords to improve houses at

Mr Kitchen (contd) a cheaper cost. I don't see it as a hazard to life and that we must be shipping people out because they are going to fall on their heads. Sorry its just a point.

Mr Shepphard: Re the aforementioned Conservation Officers comments I thought we should direct you to the original comments in core documents. 06.20 and then document 06.27 that follows the revised heritage report. It concludes that if granted we should keep a record.

Mr Shepphard: view of council was preservation by record was the way to go given their new understanding of the importance. Core document 07.02 talks through heritage value and significance.

Mr Lynch: I think Dr Usher attributed things to me which I have not made I wanted to make that point.

Ms Wigley: Conservation response 6.27 in first para of comments there conclusion rests in the communal and historical value. Dr Ushers proof hinted at in her evidence herself. 4.12 and 5.9 and evidential and historical and communal value. She is not solely focusing on aesthetics

Dr Usher: I do not dispute those they are evidently in the proof of evidence. We recognise communal and social values. We also recognise these are non designated heritage assets and they are not subjected to any legislative protections we are looking only in terms of NPF para 197

Inspector: NPPF Para 199. Recording of the heritage assets. I would like to hear views of the parties on that and the extend of how that could mitigate.

Dr Usher: I've undertaken several recorded methods in many years. Preservation by record. Terminology relates more to archaeology. It has been transferred to historic recording. Level 4 is highest level and requires very robust investigation.

Inspector: In the cases where you have levels 1-4 when excercise undertaken what typically does a record comprise.

Dr Usher: It comprises a very comprehensive investigation of the buildings, it also comprises photographic and measured surveys. It gets recorded and gets recorded in its called Oasis. Its a local archaeology system.

Inspector: What exactly would you be accessing after that's been done is it a series of photographs?

Dr Usher: You would access the entire report. You would get everything, you would be standing on the shoulders of giants and its a very comprehensive record.

Inspector: I think you said Level 4 is highest level. What is the differences between the levels 1 and 4?

Dr Usher: Level 1 is just taking photographs almost like what was provided in my proof of evidence. Level 2 is more detailed producing floor plans. Level 3 is getting a bit more comprehensive with more research. Level 4 is recorded survey and spending time in archives.

Mr White: Proposed condition 18 in statement of common ground and at 7.48 Leeds have agreed "a complete historic event" to be produced prior to any construction work taking place.

Mr Shepphard: Condition 18:- condition control. Some of information Mr Kitchen has provided could be relevant information to be included in that record.

Ms Wigley: Mr Kitchen could be provided with opportunity to comment on appropriateness / extent to which this would meet his concerns of heritage value in locally non designated heritage asset.

Mr Kitchen: Obviously Dr Usher has a lot more experience in recording development and prior to development of non-designated heritage housing. I can see the point, photographs, floor plans, history about how it came into being and why and the reason for it...

Mr Kitchen (contd)...What I really struggle with is difference between what Mr Shepphard said between demolishing and rebuilding and renovating. I can't get my head around how you could record the loss of a community that is the big thing really.

Mr Kitchen (contd) refurbishment the community is still there and is still together and supporting each other through the redevelopment. I don't see how you could record the community spirit and I don't know how you would recreate it in a new development.

Mr Kitchen: Everything else floor plans, sample of one of the panels, but why would you want to record something before destroying it, if you felt it was worthy of preservation?

Inspector: Would you see value in the recording of what Dr Usher suggests, floor plans, written history, photographs and so on.

Mr Kitchen: I wouldn't see as much value in that as you've destroyed the community in order to preserve the aesethics of these were Airey houses, these were where they were built. You don't get a feel for the community and that's what I think we will lose...

Mr Kitchen (contd) ...and I don't see how you can accurately record that.

Dr Usher: So much empathy for what Mr Kitchen just said. We preserved 5 houses back to backs. One criticism levelled at me were how dare I try to say something about them. This is dissonant heritage and you cannot preserve everything that's nostalgic to you.

Inspector: references to Airey houses elsewhere.

Dr Usher: 26,000 Airey houses were constructed. They were not unique to Leeds. Heritage Status Document Version 2. They were not just in one area prevalent across the country.

Inspector: Do you have any knowledge of how many remain?

Dr Usher: No, Im afraid I don't Sir. We have some acknowledgement of some of the Airey houses that remain. Regardless whether you have a state of 1 or 100 that survive. They are designated defective. Its as simple as that.

Inspector: Do you have any knowledge of any others or if any in Leeds remain for instance?

Mr Kitchen: ...Its unique in that it was Airey houses built by the coal board for the miners. 70 left out of 214. If we allow it to go smaller we lose the social cohesion of that community. People can go and see Airey houses for years to come.

Mr Kitchen (contd) Its the community we are going to lose and the social history of why it was built, why it was fostered as a community. Fact we have discussions today is evidence that over remaining 70 demonstrates that community spirit still exists today and as strong today

Mr Kitchen (contd)... if not stronger. Social experiment that has worked, My concern is we are going to destroy that.

Mr Shepphard: Core Document 07.02 panel report October 19. Looks at surviving examples of Airey houses. 10 examples that do exist and its not comprehensive there could well be more.

Dr Usher: Concerned about the iteration of rarity of Airey Houses. They are not designated, not listed, not located in conservation areas, reiterate that in terms of their significance in the case law that I've investigated. We all accept the non designation. Para 197 applies.

Ms Wigley: Dr Usher referred to Heritage Statement CD8.44 at end has photographic evidence of other Airey houses. Most are much smaller and not in mining areas. Mr Kitchen could maybe comment on the significance of that.

Mr Kitchen: In far as its uniqueness goes taken collectively I don't know of any surviving estates provided for and built by the coal board that surviving as social affordable rented estate that still exists. Definitely not in Leeds or the Yorkshire area to my mind.

Inspector: has anyone left to make comment on heritage. Dr Usher you have hand up is it a new point or -

Dr Usher: Yes, you know heritage value is very subjective. When anything gets threatened with harm or demolition heritage values come to the floor? Heritage values haven't been there and sat there for years and then all of a sudden they all come out to the floor.

Dr Usher: (contd): Heritage values are subjective and nobody valued these properties before this planning application. I didn't see anybody value these properties before the application. So that's my point made.

Mr Kitchen: The residents valued the properties to them they are not historic or non designated. They are part of a community that they live in and they are proud to be part of. It might not be where everyone aspires or where I want to live but I've been round the community.

Mr Kitchen: (contd) I've spoken to them. They've always cared about their estate, been proud of it and they've always looked after it.

Ms Wigley: One point I don't think its controversial he was a local man Mr Airey was a Leeds man.

Dr Usher: Right, on that note, I want to make some points of law. The airey houses are not subject to statutory protection they fall under 197.

Inspector: Dr Usher, you have made the point several times now

Dr Usher: I need to reiterate it.

Inspector: No, I've noted it you do not need to keep re-iteraing it Dr Usher.

Dr Usher: Right, we acknowledge that the Airey houses are non designated heritage assets

Inspector : It's common ground.

Dr Usher: Absolutely.

Mr White: Dr Usher, I will make the legal submissions in my closing speech. Thank you.

Dr Usher: I feel its important to re-iterate these points.

Inspector: Mr Kitchen in terms of appendices attached to your proof. There was two letters from two universities. Northumbria and Wolverhampton university. What prompted the letters?

Mr Kitchen: One of professors was doing some work in Warwick / Wolverhampton unversity and he was talking to a colleague at Newcastle and sent in their support. They obviously felt they wanted to send in their support.

Dr Usher: Can I speak?

Inspector: Im just dealing with these series of points and I will come back to you in any event if you wish to respond to anything further. Mr Kitchen reference p.142 looks like extract from a book I just wonder the source.

Mr Kitchen, I will just get it up on the computer, it should be listed in the appendix.

Inspector: If you haven't got it to hand you can find it later but I would like the source document. Mr Kitchen advised he will provide.

Mr Kitchen: yes it relates to appendix F.

Inspector: Page 20, Para 4.29 Dr Usher

Dr Usher: subject of this appeal holds no statutory designations is that correct?

Inspector: It is indeed. You make reference in that paragraph to three appeal decisions. Do I have them somewhere?

Dr Usher: No you don't but you have the reference numbers for them.

Inspector: I hope you don't mind me saying but if I simply have one line from an appeal decision I have absolutely no context for it.

Mr White: What we will do is provide those copies overnight to the parties because they are in the proof.

Inspector: I would expect them to be provided in the appendix.

Mr White: It's a fair point sir.

Dr Usher: Absolutely Sir and we will ensure you have those. To add to your point it is where the buildings are capable of having a viable use in the future. Whether justified in local and national policies. all relates to non designated assets

Dr Usher (contd): As my QC said we can have those sent to you, but they were included in the proof so you would have had opportunity to access them.

Inspector: I don't research documents, it's for the parties to provide the documents they need.

Dr Usher: Fair enough we can provide them.

Inspector: Next Paragraph 4.30 you are here to present evidence on Heritage matters. We will hear tomorrow from structural conditions of the buildings. What is the basis for conclusion at para 4.30 that buildings present a danger to life. Is that within your remit?

Dr Usher: (rude sigh) It's not within my remit, it's under the legislation. under 1985 act. These buildings are structurally unsound. Its not within my remit. I'm historic buildings expert I am not a structural engineer, but in terms of 1985 act it tells me they are a danger to

Dr Usher (contd)... life its as simple as that. Designated defective and I cannot deviate from that. I work in terms of trying to preserve historical integrity of buildings but when building regulations or an act comes along and tells me they are designated defective...

Dr Usher (contd) ... what am I supposed to do. I follow the legislation. Its as simple as that. If its a danger to life I do not deviate from that.

Inspector: Is that the evidence of the appellants structural engineer. They are now currently a danger to life?

Dr Usher: Its legislation.

Inspector: That was not my question.

Mr White: I think its an unfair question. Can you ask Mr Askew that. It is not for this witness to give evidence

Inspector: I will ask Mr Askew

Mr White: It's not for this witness to give evidence.

Inspector: she has done.

Mr White: Sorry Sir.

Inspector: She has done Mr White. If she hadn't done it I wouldn't have asked her the question.

Mr White: I know she has done. She has made clear she is our witness on heritage

Inspector: So long as then she is restricting her evidence to heritage?

Mr White: Absolutely.

Dr Usher: Yes,

Mr White: Dr Usher please keep to the tram lines of Heritage as Mr Askew will deal with that.

Dr Usher: I know, in relation to the act I had to cite that. Im just going by legislation. Its as simple as that. Im not straying outside of my grounds whatsoever.

Inspector: Ok I think you have made the point now. One final question for you. Reference para 5.14 of your proof. Point about designated defective. Does the fact of them being designated defective. Do you consider that diminishes their significance?

Dr Usher: Being designated defective is actually part of their heritage status. Its all part of the narrative. They are a designated defective type of their significance. We can record it with level 1, 2 or 3 surveys and its part of the history.

Inspector: Concludes today session. We adjourn for today and will resume tomorrow at 09:30am.

Judicial Domicide would like to thank SaveOurHomesLS26 for granting permission to us to use the feature photo.

If you would like to donate to the SaveOurHomesLS26 campaign please click here

BASIC PRINCIPLES AND GUIDELINES ON DEVELOPMENT- BASED EVICTIONS AND DISPLACEMENT

Jay Dee — Wed, 30 Sep 2020 15:20:00 GMT

Annex 1 of the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living -A/HRC/4/18

I. SCOPE AND NATURE

The obligation of States to refrain from, and protect against, forced evictions from home(s) and land arises from several international legal instruments that protect the human right to adequate housing and other related human rights. These include the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (art. 11, para. 1), the Convention on the Rights of the Child (art. 27, para. 3), the non-discrimination provisions found in article 14, paragraph 2 (h), of the Convention on the Elimination of All Forms of Discrimination against Women, and article 5 (e) of the International Convention on the Elimination of All Forms of Racial Discrimination.^[1]
In addition, and consistent with the indivisibility of a human rights approach, article 17 of the International Covenant on Civil and Political Rights states that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”, and further that “[e]veryone has the right to the protection of the law against such interference or attacks”. Article 16, paragraph 1, of the Convention on the Rights of the Child contains a similar provision. Other references in international law include article 21 of the 1951 Convention relating to the Status of Refugees; article 16 of International Labour Organization (ILO) Convention No. 169 concerning indigenous and tribal peoples in independent countries (1989); and article 49 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (Fourth Geneva Convention).^[2]
The present guidelines address the human rights implications of development- linked evictions and related displacement in urban and/or rural areas. These guidelines represent a further development of the Comprehensive human rights guidelines on development-based displacement (E/CN.4/Sub.2/1997/7, annex). They are based on international human rights law, and are consistent with general comment No. 4 (1991) and general comment No. 7 (1997) of the Committee on Economic, Social and Cultural Rights, the Guiding Principles on Internal Displacement (E/CN.4/1998/53/Add.2), the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the General Assembly in its resolution 60/147, and the Principles on housing and property restitution for refugees and displaced persons (see E/CN.4/Sub.2/2005/17 and Add.1).^[3]
Having due regard for all relevant definitions of the practice of “forced evictions” in the context of international human rights standards, the present guidelines apply to acts and/or omissions involving the coerced or involuntary displacement of individuals, groups and communities from homes and/or lands and common property resources that were occupied or depended upon, thus eliminating or limiting the ability of an individual, group or community to reside or work in a particular dwelling, residence or location, without the provision of, and access to, appropriate forms of legal or other protection.^[4]^[5]
Forced evictions constitute a distinct phenomenon under international law, and are often linked to the absence of legally secure tenure, which constitutes an essential element of the right to adequate housing. Forced evictions share many consequences similar to those resulting from arbitrary displacement,^[6] including population transfer, mass expulsions, mass exodus, ethnic cleansing and other practices involving the coerced and involuntary displacement of people from their homes, lands and communities.^[7]
Forced evictions constitute gross violations of a range of internationally recognized human rights, including the human rights to adequate housing, food, water, health, education, work, security of the person, security of the home, freedom from cruel, inhuman and degrading treatment, and freedom of movement. Evictions must be carried out lawfully, only in exceptional circumstances, and in full accordance with relevant provisions of international human rights and humanitarian law.^[8]
Forced evictions intensify inequality, social conflict, segregation and “ghettoization”, and invariably affect the poorest, most socially and economically vulnerable and marginalized sectors of society, especially women, children, minorities and indigenous peoples.^[9]
In the context of the present guidelines, development-based evictions include evictions often planned or conducted under the pretext of serving the “public good”, such as those linked to development and infrastructure projects (including large dams, large-scale industrial or energy projects, or mining and other extractive industries); land-acquisition measures associated with urban renewal, slum upgrades, housing renovation, city beautification, or other land-use programmes (including for agricultural purposes); property, real estate and land disputes; unbridled land speculation; major international business or sporting events; and, ostensibly, environmental purposes. Such activities also include those supported by international development assistance.^[10]
Displacement resulting from environmental destruction or degradation, evictions or evacuations resulting from public disturbances, natural or human-induced disasters, tension or unrest, internal, international or mixed conflict (having domestic and international dimensions) and public emergencies, domestic violence, and certain cultural and traditional practices often take place without regard for existing human rights and humanitarian standards, including the right to adequate housing. Such situations may, however, involve an additional set of considerations that the present guidelines do not explicitly address, though they can also provide useful guidance in those contexts. Attention is drawn to the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, the Guiding Principles on Internal Displacement, and the Principles on housing and property restitution for refugees and displaced persons.^[11]
While recognizing the wide range of contexts in which forced evictions take place, the present guidelines focus on providing guidance to States on measures and procedures to be adopted in order to ensure that development-based evictions are not undertaken in contravention of existing international human rights standards and do not thus constitute “forced evictions”. These guidelines aim at providing a practical tool to assist States and agencies in developing policies, legislation, procedures and preventive measures to ensure that forced evictions do not take place, and to provide effective remedies to those whose human rights have been violated, should prevention fail.^[12]

II. GENERAL OBLIGATIONS

A. Duty bearers and nature of obligations

While a variety of distinct actors may carry out, sanction, demand, propose, initiate, condone or acquiesce to forced evictions, States bear the principal obligation for applying human rights and humanitarian norms, in order to ensure respect for the rights enshrined in binding treaties and general principles of international public law, as reflected in the present guidelines. This does not, however, absolve other parties, including project managers and personnel, international financial and other institutions or organizations, transnational and other corporations, and individual parties, including private landlords and landowners, of all responsibility.^[13]
Under international law, the obligations of States include the respect, protection and fulfilment of all human rights and fundamental freedoms. This means that States shall: refrain from violating human rights domestically and extraterritorially; ensure that other parties within the State’s jurisdiction and effective control do not violate the human rights of others; and take preventive and remedial steps to uphold human rights and provide assistance to those whose rights have been violated. These obligations are continuous and simultaneous, and are not suggestive of a hierarchy of measures.^[14]

B. Basic human rights principles

According to international human rights law, everyone has the right to adequate housing as a component of the right to an adequate standard of living. The right to adequate housing includes, inter alia, the right to protection against arbitrary or unlawful interference with privacy, family, home, and to legal security of tenure.^[15]
According to international law, States must ensure that protection against forced evictions, and the human right to adequate housing and secure tenure, are guaranteed without discrimination of any kind on the basis of race, colour, sex, language, religion or belief, political or other opinion, national, ethnic or social origin, legal or social status, age, disability, property, birth or other status.^[16]
States must ensure the equal right of women and men to protection from forced evictions and the equal enjoyment of the human right to adequate housing and security of tenure, as reflected in the present guidelines.^[17]
All persons, groups and communities have the right to resettlement, which includes the right to alternative land of better or equal quality and housing that must satisfy the following criteria for adequacy: accessibility, affordability, habitability, security of tenure, cultural adequacy, suitability of location, and access to essential services such as health and education.^[18]^[19]
States must ensure that adequate and effective legal or other appropriate remedies are available to any person claiming that his/her right to protection against forced evictions has been violated or is under threat of violation.^[20]
States must refrain from introducing any deliberately retrogressive measures with respect to de jure or de facto protection against forced evictions.^[21]
States must recognize that the prohibition of forced evictions includes arbitrary displacement that results in altering the ethnic, religious or racial composition of the affected population.^[22]
States must formulate and conduct their international policies and activities in compliance with their human rights obligations, including through both the pursuit and provision of international development assistance.^[23]

C. Implementation of State obligations

States shall ensure that evictions only occur in exceptional circumstances. Evictions require full justification given their adverse impact on a wide range of internationally recognized human rights. Any eviction must be (a) authorized by law; (b) carried out in accordance with international human rights law; (c) undertaken solely for the purpose of promoting the general welfare;^[24] (d) reasonable and proportional; (e) regulated so as to ensure full and fair compensation and rehabilitation; and (f) carried out in accordance with the present guidelines. The protection provided by these procedural requirements applies to all vulnerable persons and affected groups, irrespective of whether they hold title to home and property under domestic law.^[25]
States must adopt legislative and policy measures prohibiting the execution of evictions that are not in conformity with their international human rights obligations. States should refrain, to the maximum extent possible, from claiming or confiscating housing or land, and in particular when such action does not contribute to the enjoyment of human rights. For instance, an eviction may be considered justified if measures of land reform or redistribution, especially for the benefit of vulnerable or deprived persons, groups or communities are involved. States should apply appropriate civil or criminal penalties against any public or private person or entity within its jurisdiction that carries out evictions in a manner not fully consistent with applicable law and international human rights standards. States must ensure that adequate and effective legal or other appropriate remedies are available to all those who undergo, remain vulnerable to, or defend against forced evictions.^[26]
States shall take steps, to the maximum of their available resources, to ensure the equal enjoyment of the right to adequate housing by all. The obligation of States to adopt appropriate legislative and policy measures to ensure the protection of individuals, groups and communities from evictions that are not in conformity with existing international human rights standards is immediate.^[27]^[28]
In order to ensure that no form of discrimination, statutory or otherwise, adversely affects the enjoyment of the human right to adequate housing, States should carry out comprehensive reviews of relevant national legislation and policy with a view to ensuring their conformity with international human rights provisions. Such comprehensive review should also ensure that existing legislation, regulation and policy address the privatization of public services, inheritance and cultural practices, so as not to lead to, or facilitate forced evictions.^[29]^[30]
In order to secure a maximum degree of effective legal protection against the practice of forced evictions for all persons under their jurisdiction, States should take immediate measures aimed at conferring legal security of tenure upon those persons, households and communities currently lacking such protection, including all those who do not have formal titles to home and land.^[31]
States must ensure the equal enjoyment of the right to adequate housing by women and men. This requires States to adopt and implement special measures to protect women from forced evictions. Such measures should ensure that titles to housing and land are conferred on all women.^[32]
States should ensure that binding human rights standards are integrated in their international relations, including through trade and investment, development assistance and participation in multilateral forums and organizations. States should implement their human rights obligations with regard to international cooperation,^[33] whether as donors or as beneficiaries. States should ensure that international organizations in which they are represented refrain from sponsoring or implementing any project, programme or policy that may involve forced evictions, that is, evictions not in full conformity with international law, and as specified in the present guidelines.^[34]

D. Preventive strategies, policies and programmes

States should adopt, to the maximum of their available resources, appropriate strategies, policies and programmes to ensure effective protection of individuals, groups and communities against forced eviction and its consequences.^[35]
States should carry out comprehensive reviews of relevant strategies, policies and programmes, with a view to ensuring their compatibility with international human rights norms. In this regard, such reviews must strive to remove provisions that contribute to sustaining or exacerbating existing inequalities that adversely affect women and marginalized and vulnerable groups. Governments must take special measures to ensure that policies and programmes are not formulated or implemented in a discriminatory manner, and do not further marginalize those living in poverty, whether in urban or rural areas.^[36]
States should take specific preventive measures to avoid and/or eliminate underlying causes of forced evictions, such as speculation in land and real estate. States should review the operation and regulation of the housing and tenancy markets and, when necessary, intervene to ensure that market forces do not increase the vulnerability of low-income and other marginalized groups to forced eviction. In the event of an increase in housing or land prices, States should also ensure sufficient protection against physical or economic pressures on residents to leave or be deprived of adequate housing or land.^[37]
Priority in housing and land allocation should be ensured to disadvantaged groups such as the elderly, children and persons with disabilities.^[38]
States must give priority to exploring strategies that minimize displacement. Comprehensive and holistic impact assessments should be carried out prior to the initiation of any project that could result in development-based eviction and displacement, with a view to securing fully the human rights of all potentially affected persons, groups and communities, including their protection against forced evictions. “Eviction-impact” assessment should also include exploration of alternatives and strategies for minimizing harm. ^[39]
Impact assessments must take into account the differential impacts of forced evictions on women, children, the elderly, and marginalized sectors of society. All such assessments should be based on the collection of disaggregated data, such that all differential impacts can be appropriately identified and addressed.^[40]
Adequate training in applying international human rights norms should be required and provided for relevant professionals, including lawyers, law enforcement officials, urban and regional planners and other personnel involved in the design, management and implementation of development projects. This must include training on women’s rights, with an emphasis on women’s particular concerns and requirements pertaining to housing and land.^[41]
States should ensure the dissemination of adequate information on human rights and laws and policies relating to protection against forced evictions. Specific attention should be given to the dissemination of timely and appropriate information to groups particularly vulnerable to evictions, through culturally appropriate channels and methods.^[42]
States must ensure that individuals, groups and communities are protected from eviction during the period that their particular case is being examined before a national, regional or international legal body.^[43]

III. PRIOR TO EVICTIONS

Urban or rural planning and development processes should involve all those likely to be affected and should include the following elements: (a) appropriate notice to all potentially affected persons that eviction is being considered and that there will be public hearings on the proposed plans and alternatives; (b) effective dissemination by the authorities of relevant information in advance, including land records and proposed comprehensive resettlement plans specifically addressing efforts to protect vulnerable groups; (c) a reasonable time period for public review of, comment on, and/or objection to the proposed plan; (d) opportunities and efforts to facilitate the provision of legal, technical and other advice to affected persons about their rights and options; and (e) holding of public hearing(s) that provide(s) affected persons and their advocates with opportunities to challenge the eviction decision and/or to present alternative proposals and to articulate their demands and development priorities.^[44]
States should explore fully all possible alternatives to evictions. All potentially affected groups and persons, including women, indigenous peoples and persons with disabilities, as well as others working on behalf of the affected, have the right to relevant information, full consultation and participation throughout the entire process, and to propose alternatives that authorities should duly consider. In the event that agreement cannot be reached on a proposed alternative among concerned parties, an independent body having constitutional authority, such as a court of law, tribunal or ombudsperson should mediate, arbitrate or adjudicate as appropriate.^[45]
During planning processes, opportunities for dialogue and consultation must be extended effectively to the full spectrum of affected persons, including women and vulnerable and marginalized groups, and, when necessary, through the adoption of special measures or procedures.^[46]
Prior to any decision to initiate an eviction, authorities must demonstrate that the eviction is unavoidable and consistent with international human rights commitments protective of the general welfare.^[47]
Any decision relating to evictions should be announced in writing in the local language to all individuals concerned, sufficiently in advance. The eviction notice should contain a detailed justification for the decision, including on: (a) absence of reasonable alternatives; (b) the full details of the proposed alternative; and (c) where no alternatives exist, all measures taken and foreseen to minimize the adverse effects of evictions. All final decisions should be subject to administrative and judicial review. Affected parties must also be guaranteed timely access to legal counsel, without payment if necessary.^[48]
Due eviction notice should allow and enable those subject to eviction to take an inventory in order to assess the values of their properties, investments and other material goods that may be damaged. Those subject to eviction should also be given the opportunity to assess and document non-monetary losses to be compensated.^[49]
Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. The State must make provision for the adoption of all appropriate measures, to the maximum of its available resources, especially for those who are unable to provide for themselves, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available and provided. Alternative housing should be situated as close as possible to the original place of residence and source of livelihood of those evicted.^[50]
All resettlement measures, such as construction of homes, provision of water, electricity, sanitation, schools, access roads and allocation of land and sites, must be consistent with the present guidelines and internationally recognized human rights principles, and completed before those who are to be evicted are moved from their original areas of dwelling.^[51]^[52]

IV. DURING EVICTIONS

The procedural requirements for ensuring respect for human rights standards include the mandatory presence of governmental officials or their representatives on site during evictions. The governmental officials, their representatives and persons implementing the eviction must identify themselves to the persons being evicted and present formal authorization for the eviction action.^[53]
Neutral observers, including regional and international observers, should be allowed access upon request, to ensure transparency and compliance with international human rights principles during the carrying out of any eviction.^[54]
Evictions shall not be carried out in a manner that violates the dignity and human rights to life and security of those affected. States must also take steps to ensure that women are not subject to gender-based violence and discrimination in the course of evictions, and that the human rights of children are protected.^[55]
Any legal use of force must respect the principles of necessity and proportionality, as well as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and any national or local code of conduct consistent with international law enforcement and human rights standards.^[56]
Evictions must not take place in inclement weather, at night, during festivals or religious holidays, prior to elections, or during or just prior to school examinations.^[57]
States and their agents must take steps to ensure that no one is subject to direct or indiscriminate attacks or other acts of violence, especially against women and children, or arbitrarily deprived of property or possessions as a result of demolition, arson and other forms of deliberate destruction, negligence or any form of collective punishment. Property and possessions left behind involuntarily should be protected against destruction and arbitrary and illegal appropriation, occupation or use.^[58]
Authorities and their agents should never require or force those evicted to demolish their own dwellings or other structures. The option to do so must be provided to affected persons, however, as this would facilitate salvaging of possessions and building material.^[59]

V. AFTER AN EVICTION: IMMEDIATE RELIEF AND RELOCATION

The Government and any other parties responsible for providing just compensation and sufficient alternative accommodation, or restitution when feasible, must do so immediately upon the eviction, except in cases of force majeure. At a minimum, regardless of the circumstances and without discrimination, competent authorities shall ensure that evicted persons or groups, especially those who are unable to provide for themselves, have safe and secure access to: (a) essential food, potable water and sanitation; (b) basic shelter and housing; (c) appropriate clothing; (d) essential medical services; (e) livelihood sources; (f) fodder for livestock and access to common property resources previously depended upon; and (g) education for children and childcare facilities. States should also ensure that members of the same extended family or community are not separated as a result of evictions.^[60]
Special efforts should be made to ensure equal participation of women in all planning processes and in the distribution of basic services and supplies.^[61]
In order to ensure the protection of the human right to the highest attainable standard of physical and mental health, all evicted persons who are wounded and sick, as well as those with disabilities, should receive the medical care and attention they require to the fullest extent practicable and with the least possible delay, without distinction on any non-medically relevant grounds. When necessary, evicted persons should have access to psychological and social services. Special attention should be paid to: (a) the health needs of women and children, including access to female health-care providers where necessary, and to services such as reproductive health care and appropriate counselling for victims of sexual and other abuses; (b) ensuring that ongoing medical treatment is not disrupted as a result of eviction or relocation; and (c) the prevention of contagious and infectious diseases, including HIV/AIDS, at relocation sites.^[62]
Identified relocation sites must fulfil the criteria for adequate housing according to international human rights law. These include:^[63] (a) security of tenure; (b) services, materials, facilities and infrastructure such as potable water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services, and to natural and common resources, where appropriate; (c) affordable housing; (d) habitable housing providing inhabitants with adequate space, protection from cold, damp, heat, rain, wind or other threats to health, structural hazards and disease vectors, and ensuring the physical safety of occupants; (e) accessibility for disadvantaged groups; (f) access to employment options, health-care services, schools, childcare centres and other social facilities, whether in urban or rural areas; and (g) culturally appropriate housing. In order to ensure security of the home, adequate housing should also include the following essential elements: privacy and security; participation in decision-making; freedom from violence; and access to remedies for any violations suffered.^[64]
In determining the compatibility of resettlement with the present guidelines, States should ensure that in the context of any case of resettlement the following criteria are adhered to:
(a) No resettlement shall take place until such time as a comprehensive resettlement policy consistent with the present guidelines and internationally recognized human rights principles is in place;
(b) Resettlement must ensure that the human rights of women, children, indigenous peoples and other vulnerable groups are equally protected, including their right to property ownership and access to resources;
(c) The actor proposing and/or carrying out the resettlement shall be required by law to pay for any associated costs, including all resettlement costs;
(d) No affected persons, groups or communities shall suffer detriment as far as their human rights are concerned, nor shall their right to the continuous improvement of living conditions be subject to infringement. This applies equally to host communities at resettlement sites, and affected persons, groups and communities subjected to forced eviction;
(e) The right of affected persons, groups and communities to full and prior informed consent regarding relocation must be guaranteed. The State shall provide all necessary amenities, services and economic opportunities at the proposed site;
(f) The time and financial cost required for travel to and from the place of work or to access essential services should not place excessive demands upon the budgets of low-income households;
(g) Relocation sites must not be situated on polluted land or in immediate proximity to pollution sources that threaten the right to the highest attainable standards of mental and physical health of the inhabitants;
(h) Sufficient information shall be provided to the affected persons, groups and communities on all State projects and planning and implementation processes relating to the concerned resettlement, including information on the purported use of the eviction dwelling or site and its proposed beneficiaries. Particular attention must be paid to ensuring that indigenous peoples, minorities, the landless, women and children are represented and included in this process;
(i) The entire resettlement process should be carried out with full participation by and with affected persons, groups and communities. States should, in particular, take into account all alternative plans proposed by the affected persons, groups and communities;
(j) If, after a full and fair public hearing, it is found that there still exists a need to proceed with the resettlement, then the affected persons, groups and communities shall be given at least 90 days’ notice prior to the date of the resettlement; and
(k) Local government officials and neutral observers, properly identified, shall be present during the resettlement so as to ensure that no force, violence or intimidation is involved.^[65]
Rehabilitation policies must include programmes designed for women and marginalized and vulnerable groups to ensure their equal enjoyment of the human rights to housing, food, water, health, education, work, security of the person, security of the home, freedom from cruel, inhuman or degrading treatment, and freedom of movement.^[66]
Persons, groups or communities affected by an eviction should not suffer detriment to their human rights, including their right to the progressive realization of the right to adequate housing. This applies equally to host communities at relocation sites.^[67]

VI. REMEDIES FOR FORCED EVICTIONS

All persons threatened with or subject to forced evictions have the right of access to timely remedy. Appropriate remedies include a fair hearing, access to legal counsel, legal aid, return, restitution, resettlement, rehabilitation and compensation, and should comply, as applicable, with the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.^[68]

A. Compensation

When eviction is unavoidable, and necessary for the promotion of the general welfare, the State must provide or ensure fair and just compensation for any losses of personal, real or other property or goods, including rights or interests in property. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, such as: loss of life or limb; physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services. Cash compensation should under no circumstances replace real compensation in the form of land and common property resources. Where land has been taken, the evicted should be compensated with land commensurate in quality, size and value, or better.^[69]
All those evicted, irrespective of whether they hold title to their property, should be entitled to compensation for the loss, salvage and transport of their properties affected, including the original dwelling and land lost or damaged in the process. Consideration of the circumstances of each case shall allow for the provision of compensation for losses related to informal property, such as slum dwellings.^[70]
Women and men must be co-beneficiaries of all compensation packages. Single women and widows should be entitled to their own compensation.^[71]
To the extent not covered by assistance for relocation, the assessment of economic damage should take into consideration losses and costs, for example, of land plots and house structures; contents; infrastructure; mortgage or other debt penalties; interim housing; bureaucratic and legal fees; alternative housing; lost wages and incomes; lost educational opportunities; health and medical care; resettlement and transportation costs (especially in the case of relocation far from the source of livelihood). Where the home and land also provide a source of livelihood for the evicted inhabitants, impact and loss assessment must account for the value of business losses, equipment/inventory, livestock, land, trees/crops, and lost/decreased wages/income.^[72]

B. Restitution and return

The circumstances of forced evictions linked to development and infrastructure projects (including those mentioned in paragraph 8 above) seldom allow for restitution and return. Nevertheless, when circumstances allow, States should prioritize these rights of all persons, groups and communities subjected to forced evictions. Persons, groups and communities shall not, however, be forced against their will to return to their homes, lands or places of origin.^[73]
When return is possible or adequate resettlement in conformity with these guidelines is not provided, the competent authorities should establish conditions and provide the means, including financial, for voluntary return in safety and security, and with dignity, to homes or places of habitual residence. Responsible authorities should facilitate the reintegration of returned persons and exert efforts to ensure the full participation of affected persons, groups and communities in the planning and management of return processes. Special measures may be required to ensure women’s equal and effective participation in return or restitution processes in order to overcome existing household, community, institutional, administrative, legal or other gender biases that contribute to marginalization or exclusion of women.^[74]
Competent authorities have the duty and responsibility to assist returning persons, groups or communities to recover, to the maximum extent possible, the property and possessions that they left behind or were dispossessed of upon their eviction.^[75]
When return to one’s place of residence and recovery of property and possessions is not possible, competent authorities must provide victims of forced evictions, or assist them in obtaining, appropriate compensation or other forms of just reparation.^[76]

C. Resettlement and rehabilitation

While all parties must give priority to the right of return, certain circumstances (including for the promotion of general welfare, or where the safety, health or enjoyment of human rights so demands) may necessitate the resettlement of particular persons, groups and communities due to development-based evictions. Such resettlement must occur in a just and equitable manner and in full accordance with international human rights law as elaborated in section V of these guidelines.^[77]

VII. MONITORING, EVALUATION AND FOLLOW-UP

States should actively monitor and carry out quantitative and qualitative evaluations to determine the number, type and long-term consequences of evictions, including forced evictions, that occur within their jurisdiction and territory of effective control. Monitoring reports and findings should be made available to the public and concerned international parties in order to promote the development of best practices and problem-solving experiences based on lessons learned.^[78]
States should entrust an independent national body, such as a national human rights institution, to monitor and investigate forced evictions and State compliance with these guidelines and international human rights law.^[79]

VIII. ROLE OF THE INTERNATIONAL COMMUNITY, INCLUDING INTERNATIONAL ORGANIZATIONS

The international community bears an obligation to promote, protect and fulfil the human right to housing, land and property. International financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, should take fully into account the prohibition on forced evictions under international human rights law and related standards.^[80]
International organizations should establish or accede to complaint mechanisms for cases of forced evictions that result from their own practices and policies. Legal remedies should be provided to victims in accordance with those stipulated in these guidelines.^[81]
Transnational corporations and other business enterprises must respect the human right to adequate housing, including the prohibition on forced evictions, within their respective spheres of activity and influence.^[82]

IX. INTERPRETATION

These guidelines on development-based evictions and displacement shall not be interpreted as limiting, altering or otherwise prejudicing the rights recognized under international human rights, refugee, criminal or humanitarian law and related standards, or rights consistent with these laws and standards as recognized under any national law.^[83]

Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 1 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 2 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 3 ↩︎
The prohibition of forced evictions does not apply to evictions carried out both in accordance with the law and in conformity with the provisions of international human rights treaties. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 4 ↩︎
Consistent with Principle 6 of the Guiding Principles on Internal Displacement. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 5 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 6 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 7 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 8 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 9 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 10 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 11 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 12 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 13 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 14 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 15 ↩︎
See general comment No. 4 on the right to adequate housing, adopted by the Committee on Economic, Social and Cultural Rights in 1991. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 16 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 17 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 18 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 19 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 20 ↩︎
In the present guidelines, the promotion of the general welfare refers to steps taken by States consistent with their international human rights obligations, in particular the need to ensure the human rights of the most vulnerable. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 21 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 22 ↩︎
See general comment No. 3 on the nature of States parties’ obligations, adopted in 1990 by the Committee on Economic, Social and Cultural Rights. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 23 ↩︎
See the guidelines on housing and discrimination contained in the 2002 report of the Commission on Human Rights Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (E/CN.4/2002/59). ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 24 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 25 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 26 ↩︎
As set forth in article 22, Universal Declaration of Human Rights; Articles 55 and 56 of the Charter of the United Nations; articles 2, paragraph 1, 11, 15, 22 and 23, International Covenant on Economic, Social and Cultural Rights; articles 23, paragraph 4, and 28, paragraph 3, Convention on the Rights of the Child. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 27 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 28 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 29 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 30 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 31 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 32 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 33 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 34 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 35 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 36 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 37 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 38 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 39 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 40 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 41 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 42 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 43 ↩︎
See section V of the present guidelines. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 44 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 45 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 46 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 47 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 48 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 49 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 50 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 51 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 52 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 53 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 54 ↩︎
See general comment No. 4 on adequate housing adopted by the Committee on Economic, Social and Cultural Rights in 1991. ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 55 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 56 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 57 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 58 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 59 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 60 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 61 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 62 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 63 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 64 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 65 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 66 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 67 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 68 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 69 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 70 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 71 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 72 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 73 ↩︎
Basic Principles and Guidelines on Development Based Evictions and Displacement (A-HRC-4-18) at para 74 ↩︎

COVID-19 Guidance Note:

Jay Dee — Thu, 17 Sep 2020 20:53:24 GMT

COVID-19 Guidance Note:

Prohibition of evictions

Leilani Farha

Special Rapporteur on the right to adequate housing

28th April 2020

Housing has become the frontline defense against the coronavirus.

In order to prevent the spread of COVID-19, States across the world are ordering millions of people to “stay home”. And yet, at the same time, many households and communities continue to be threatened with eviction.

At least 150 million people worldwide live in homelessness, in emergency shelters, or on pavements. Reports are emerging of many homeless people being removed from their encampments, or rounded up by local authorities and placed in congregated settings such as stadiums, camps and convention centres.
One quarter of the world’s urban population live in informal settlements, lacking security of tenure. They can be removed from their lands at any time. It has been reported that forced eviction of informal settlement dwellers have been considered in order to ‘de- densify’ settlements to implement physical distancing.
Tenants and homeowners are struggling to make their rental or mortgage payments as a result of housing markets that are unaffordable, and now job loss and underemployment.
Migrants living in labour camps are also losing their homes when lockdown policies are put into place.

Evictions are not only inconsistent with the ‘stay home’ policy, but forced evictions are a violation of international human rights law, including the right to housing, as are any evictions that result in homelessness.^[1] In the face of this pandemic, being evicted from your home is a potential death sentence.

The right to adequate housing is not subject to derogation in times of emergency. Limitations to this right are only permissible as determined by law and in so far as they are compatible with the nature of this right, and solely for the purpose of promoting the general welfare in a democratic society.^[2]

In this context, States must ensure that everyone is protected against eviction. This will require cooperation between national and subnational governments, so that the necessary resources and capacities are available to ensure all efforts carried out in this regard are effective.

States must therefore take the following urgent measures, in conformity with their obligations under human rights law:

Declare an end to all evictions of anyone, anywhere for any reason until the end of the pandemic and for a reasonable period of time thereafter. The only exceptions to this blanket policy should be where someone must be removed from his or her home because she or he is causing harm to others or in situation of a serious threat to the life of residents, e.g. to prevent death provoked by housing collapses or by natural disasters, such as flooding. Any person that is evacuated to prevent harm must be provided with secure and decent alternative housing.
With respect to informal settlements and encampments:

a. Declare an end to the forced eviction or displacement of informal settlements. Ensure the necessary resources are available to implement this order effectively, including resources to monitor and prevent extrajudicial evictions.

b. Prohibit emergency processes, such as ‘de-densification’, that involve the forced removal of large numbers of people from informal settlements/encampments.

c. Where households have agreed to be resettled for de-densification purposes, they must have the right to return or alternatively be able to remain in the resettlement area if they so wish and be provided there with security of tenure. Any resettlement should only take place after affected persons have been meaningfully consulted.

d. Cease the forced eviction or dismantling of encampments of homeless people and recognize that in some instances encampments may be safer than other available accommodation, such as collective shelters. Residents of encampments must, however, be provided with the option of moving to alternate accommodation where self-isolation is possible

See: COVID-19 Guidance Note: Protecting residents of informal settlements.

When de-densifying emergency shelters by reducing the number of available beds, displaced shelter residents must be provided with safe alternative accommodation, otherwise such de- densification would amount to an eviction into homelessness, in violation of international human rights law.
Evictions for non-payment of rent, rental arrears, mortgage payment default, and utility payment arrears shall be prohibited during the pandemic and for a reasonable period thereafter. See: COVID-19 Guidance Note: Protecting renters and mortgage payers
Where migrant workers or domestic workers are housed in their place of work or in accommodation provided by their employers, States must ensure that they can either remain housed free of charge or at a rent affordable to them. This is particularly important in situations where business operations, domestic services, and wages have been either reduced or suspended, or if their work contracts been ended as a consequence of the COVID-19 pandemic. If accommodation cannot be reasonably provided by their employers, the State is obliged to provide affected migrant and domestic workers with alternative secure accommodation. No migrant worker or domestic worker should be left in a situation of homelessness. Failing to do so is tantamount to a forced eviction strictly prohibited by international human rights law.
Ensure that any evictions or foreclosures that were approved before the pandemic commenced are suspended.
Provide sufficient resources to implement the ban of evictions effectively, including resources to monitor and prevent private actors from carrying out extrajudicial evictions.
In light of the economic recession, measures must be in place to ensure security of tenure and that no one is evicted into homelessness for a reasonable time after the end of the pandemic.
States must ensure that homeless populations are not displaced from where they are living or unwillingly rounded up and placed in jail or holding sites. These actions are tantamount to forced evictions. For those who received temporary accommodations in hotels and emergency shelters to protect them from the virus during the pandemic, they must not be returned to a situation of homelessness once the pandemic is over. This would be a retrogressive measure, contrary to international human rights law. These populations must be provided with access to long-term housing with supports. States must take this opportunity to eliminate homelessness in keeping with their international human rights obligations and their commitments under the Sustainable Development Goals.
Ensure access to justice for those individuals, families or communities that have experienced an eviction and are seeking access to effective remedies.

This article has been copied and republished here under fair use for those who cannot access it as a pdf file.

The original source file is here

See Committee on Economic, Social and Cultural Rights, General Comment No. 7 on forced evictions, passim and para 16. ↩︎
See Articles 4 and 5 of the International Covenant on Economic, Social and Cultural Rights. ↩︎

Our Roadmap

Sam Lowry — Sun, 13 Sep 2020 11:38:00 GMT

Greetings, everyone.

As we lead up to the date of our online event, we would like to share a short roadmap of our plans moving forward in the realm of domicide, which is defined as “the deliberate destruction of home by human agency in pursuit of specified goals, which causes suffering to the victims.”^[1]

The remit of Judicial Domicide is thus: to observe, investigate, and research any act of domicide or displacement facilitated by the legal system, its machinery, actors, agents, officers, and/or instruments. An important part of our work will be to act as a curator of empirical evidence, which can be used by ourselves and others to seek to obtain accountability of violations of the rule of law, and/or international human rights treaties.

Included in this remit are any cases in which a human being has felt that they have had no choice but to flee and leave their home due to external pressures imposed upon them by third parties.

The core topic of our event will centre around eviction proceedings and the tactics employed by enforcement agents in effecting the displacement of occupiers from their homes, which is the nexus of our remit that forms the foundation of our efforts as a humanitarian and research organisation.

After the event has concluded and we have introduced the essential elements that comprise the body of our work, we will be publishing a series of educational lessons, which are part of the training course that we are piloting, and this scheme will contain insightful information pertaining to the powers of enforcement agents, the rights of occupiers, the role of landlords, as well as the steps that can be taken during, leading up to, and after eviction.

We intend to cover the aforementioned areas in sufficient detail so that occupiers are aware of the range of options and procedures available to them at all stages of the eviction process.

This particular field is where we will be focusing our attention due to there being an overwhelming demand for clarification with respect to the factors at play in evictions that are often instrumental in the outcome of such cases.

Openness and transparency within this scope is both imperative and paramount in understanding the nature of displacement plus the lasting consequences of said action.

J. D. Porteous and S. E. Smith, Domicide : the global destruction of home (McGill-Queen’s University Press 2001). ↩︎

Joint Collaboration

Jay Dee — Fri, 11 Sep 2020 20:17:09 GMT

TenantsUnionUK has invited Judicial Domicide to run an online training event to provide an overview "on the ins and outs of eviction resistance."

This online event will take place on Monday 14th September 2020 at 18:00 BST.

We will provide an overview on the following areas:

Pre-Eviction:
During an Eviction:
Following the outcome of the day / Post-Eviction Steps

Eviction Resistance is an action of last resort. If you are fearing an eviction, whilst we welcome you to reach out to us, we also recommend that you urgently seek professional legal advice from a reputable legal practitioner who is regulated by the SRA, CILEx, and/or the BSB.

If you would like to register for this online event please use TenantsUnionUK's event registration here:

For information about TenantsUnionUK please visit their website.

Upcoming Online Event

Jay Dee — Thu, 10 Sep 2020 21:09:54 GMT

Hello, everyone.

On September the 14^th, 2020 at 18:00, we will be participating in an online event where we discuss the mechanisms utilised by enforcement agents in eviction proceedings, along with giving our insight into what you should do and how you should react if you are in the process of being evicted from your home.

This educational event will contain enlightening information concerning the dialogue that you should use and the responses that you should give to enforcement agents who are engaging in eviction action against you.

We will also be covering the role that local authorities can play in eviction proceedings, plus what actions they can and cannot take.

The event will include an easy to understand presentation that highlights the key areas surrounding the steps typically taken during evictions, as well as the types of paperwork that commonly need to be produced in the majority of these scenarios, for your peace of mind that you are sufficiently informed of the instruments necessary so as to ensure that the relevant legal requirements have been met in accordance with the law.

Our goal is to give you the knowledge that you require so that you feel both confident in and capable of facing such a harrowing and traumatic situation, and we will additionally be introducing preliminary access to further resources that we will be making available on our website in due course.

Bringing clarity and objectivity, regarding eviction proceedings, to people across the country is our principal aim.

If you wish to join the online event, you can register here.