APPEAL REF: APP/N4720/W/20/3250249
SITE: DEMOLITION OF  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.
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.
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. 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
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
- 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.
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 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 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')
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
- 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. The interference has to be balanced with all other material considerations in an overall planning judgment. 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. This requires a decision maker to identify what the child’s best interests are. 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.
- 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. The decision-maker must assess whether the adverse impact of his decision on the interests of a child is proportionate. 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. The duty must be "exercised in substance, with rigour, and with an open mind": it is not a question of "ticking boxes". 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 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. This can be done on a ‘no fault’ basis. The current notice period is 6 months, due to the pandemic. 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  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  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.
- The NPPF advises that “the purpose of the planning system is to contribute to the achievement of sustainable development” (at ) 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 ). 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
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 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  EWHC 792 (Admin), at . 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  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  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  1 WLR 1447.
- That presumption, however, is rebuttable by other material considerations that may indicate otherwise – Stratford on Avon DC v SSCLG  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  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  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  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  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  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  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  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  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  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  EWHC 792 and Collins v SSCLG  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.
(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. ↩︎
Stevens v Secretary of State for Communities and Local Government the Secretary of State  EWHC 792 (Admin) at , endorsed by the Court of Appeal at  in Collins v Secretary of State for Communities and Local Government  WLR(D) 376. ↩︎
Stevens v Secretary of State for Communities and Local Government the Secretary of State  EWHC 792 (Admin) at , endorsed by the Court of Appeal at  in Collins v Secretary of State for Communities and Local Government  WLR(D) 376. ↩︎
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. ↩︎