A lot has been written already about Friday’s decision by the Secretary of State for Communities and Local Government, Sajid Javid, to accept the Government Inspector’s recommendation not to confirm Southwark Labour Council’s Compulsory Purchase Order on the homes of leaseholders on the First Development Site of the Aylesbury Estate regeneration. But in the understandable excitement at this rare victory, not all of it has been accurate. The London News even printed an article by Toby Porter, a former journalist for the Daily Mail, that confused the objections raised by leaseholders with the reasons why the Secretary of State has refused the Compulsory Purchase Order.
As the letter from the Department for Communities and Local Government shows, most of the objections the leaseholders raised have in fact been rejected by the Secretary of State – specifically:
- That social housing will not be provided on the new development: an objection he ignores, as you’d expect of a member of a Government that, with the Housing and Planning Act, removed the obligation to include any homes for social rent in new housing developments;
- That Southwark Council’s redevelopment plans are unviable: he concludes, to the contrary, that they are;
- That the refurbishment of the estate was not considered as an alternative to demolition and redevelopment: in fact it was, but the results of the extensive research commissioned by Southwark Labour Council were not presented to the Executive Committee, and on this evidence – or rather, on the lack of it – the Secretary of State concludes that refurbishment is unviable;
- That the scheme will not benefit the wider area: although this is one of the legal conditions of issuing a Compulsory Purchase Order, since these objections are to its effects on the leaseholders making them, there is no obligation for the Secretary of State to consider such a claim – which he doesn’t.
So despite initial appearances to the contrary, the former Managing Director of Deutsche Bank hasn’t developed a sudden concern about the social cleansing of London’s council estates. The actual reasons the current Secretary of State gives for refusing the Compulsory Purchase Order are listed in the letter under the following paragraphs:
- ‘It will have considerable economic, social and environmental dis-benefits in terms of consequences for those leaseholders remaining on the Order land.’
- ‘The deficiencies of the scheme include the number of dwellings that fail to meet the Council’s adopted standards for sunlight and daylight, and the extent of overshadowing to the proposed amenity areas.’
- ‘The Council has not taken reasonable steps to acquire land interests by agreement.’
- ‘The interference with residents’ (in particular leaseholders’) Article 8 rights is not demonstrably necessary or proportionate, taking into account the likelihood that if the scheme is approved, it will probably force many of those concerned to move from this area.’
- ‘The interference with residents’ peaceful enjoyment of their property was not necessary to control the use of property in accordance with the general interest, and accordingly that the interference with Article 1 of the First Protocol was not proportionate.’
To clarify these last two reasons, under the European Convention on Human Rights to which the Secretary of State refers, everyone has: ‘the right to respect for his private and family life, his home and his correspondence’ (Article 8); and ‘is entitled to the peaceful enjoyment of his possessions’ (Protocol 1).
- ‘There are significant negative impacts on protected groups if the Compulsory Purchase Order is confirmed.’
Under Section 149 of the Equality Act 2010, from which the ‘Public Sector Equality Duty’ arises, this consideration – which goes on to make particular reference to the age and ethnicity of the leaseholders and the disproportionate negative effects the Compulsory Purchase Order will have on elderly residents unable to stay in the area, children forced into new schools, and residents from black and ethnic minorities separated from their cultural communities – makes up by far the largest section of the letter, and has the most potential for all residents’ rights. However, its implications are qualified by the following statement, which is much more in keeping with the considerations of a Tory Minister:
- ‘Mitigation of negative Public Sector Equality Duty effects – by suggested modifications to the Order – is in practice not possible. Full planning permission has already been granted and it would therefore not be practical to require changes which could not in practice be put into effect.’
All of which leads the Secretary of State to the following conclusion:
- ‘He considers that potentially there is a good opportunity for the Council to work positively with the remaining leaseholders to alleviate the negative aspects he has highlighted above with a view to resubmitting an Order in due course to achieve successfully the objectives set out in the planning framework.’
So, in a further effort at reaching ‘agreement’, we can expect Notting Hill Housing Association to throw a large amount of money at the leaseholders to compensate them for their relinquished human rights, and in doing so relieve Southwark Labour Council of its duty to public sector equality. As the letter states very clearly:
- ‘Compensation is not a relevant consideration in relation to whether the Secretary of State should confirm the Order because this issue is dealt with separately by the Upper Tribunal.’
Which I believe in legal terms is what’s called ‘passing the buck’.
However, the power of leaseholders over their homes has been greatly increased, which definitely makes this decision a victory for those fighting the demolition of their homes. But we should be clear about exactly what that victory is based on, which is the property rights of leaseholders, not what some of us mistakenly understand by human rights. If nothing else, the increased compensation leaseholders can demand might make developers and housing associations like Notting Hill Housing think twice about getting councils to issue Compulsory Purchase Orders.
But potentially the most useful part of this document is the long section on Public Sector Equality Duty (paragraphs 23-33). Here the considerations of the Secretary of State this duty gives rise to are only sited in the context of the leaseholders who made their objections to his Department; but there is an argument to be made that the negative effects of being moved away from community support networks are just as applicable to tenants, and that simply re-housing them elsewhere doesn’t mitigate those effects.
This is, perhaps, where the real victory lies in this decision by the Secretary of State: not in the property rights of leaseholders, but in the potential for articulating the human rights of all residents whose homes are threatened by estate demolition schemes. Article 8 of the European Convention on Human Rights, to which the Secretary of State refers, protects a person’s ‘right to respect for his private and family life, his home.’ This opens the possibility to argue that, even though they don’t own the property, a tenant’s council flat is their home, and therefore that its demolition, their eviction from it and relocation to a new property against their will, is an infringement of their human rights to respect for that home.
The other opportunities this decision opens to those of us fighting estate demolition schemes is that if councils can be compelled to consider arguments for the viability of refurbishment – which Southwark Labour Council did not for the Aylesbury Estate – and alternatives to demolition are proposed before planning permission is granted, then the Secretary of State is under obligation to consider them, or at least to consider why a given council didn’t consider them, or at least to consider their considerations. Unfortunately, by the time objections to a Compulsory Purchase Order get to his Department, planning permission will already have been granted; and challenges to whether councils have genuinely considered options other than demolition properly belong in judicial reviews by the High Court. But in our own struggle against Lambeth Labour Council, ASH are in the process of showing that their rejection of our proposed alternatives to the demolition of Central Hill Estate was based on fabricated figures, false evaluations, deliberate misunderstandings and a complete refusal to engage with us. So we imagine that they, and other Labour Councils implementing estate demolition schemes across London’s boroughs, will be studying the Secretary of State’s decision closely.
As to why he made it, perhaps the Tory Government is worried about the growing power of Labour Councils in London, which – as the July Progress Conference held by the right-wing Labour cabal demonstrated – is where the Labour Party sees its future power base over the next decade. Perhaps another, wealthier, more powerful developer wants a cut of the Aylesbury pie, and convinced the Secretary of State to scare Notting Hill Housing Association away. Who knows? But a precedent has been set, and we need to use it to save the homes not only of leaseholders, but also of the tenants that make up the majority of residents on London’s housing estates, and who – not because of their age, disability, gender reassignment, pregnancy, maternity, race, religion, sex or sexual orientation (all of which are protected against discrimination by the Equality Act), but because of their poverty (which isn’t) – are disproportionately and negatively effected by an estate demolition programme that is socially cleansing the working class from London.
Simon Elmer
Architects for Social Housing
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A Communist in Hong Kong 
Simon
You takes a clear headed view of the decision by government, and Sajid Javid, the current Secretary of State for Communities and Local Government, to block the Notting Hill Housing Trust over the Aylesbury Estate.
Though you are opposed, you have identified that this is a decision in defence of the property rights of leaseholders. You are also fully aware that this is a political attempt to divide leaseholders from tenants when estates are provided for “intensification” or outright demolition.
Pay the leaseholders better, is Javid’s message. That makes political sense. He will also be aware that Local Authorities stuffing leaseholders with a CPO also calls into question the promise that the Right to Buy meant anything. Margaret Thatcher was always selling an inferior property right.
Where you will get into knots is over Human Rights.
You want to insist upon the 1948 Right to Housing, regardless of property rights. You want tenants to be treated equally to leaseholders. Javid wants to put more emphasis on the fact that the UN also invoked protection of property rights. The added difficulty in Britain is that property owners have had their development rights denied by the 1947 planning system that Javid is in charge of. But you want to use the planning system to build Council Houses.
The matter of the Right to Housing is coming to a head. This was and is a legal fiction. There is no Right to Housing. The only thing that matters to government is property rights, and tenants have none of the property enjoyed by leaseholders, or the freeholder charging them a ground rent.
That argument will be had out even though the freeholder as a Local Authority is also the planning authority delegated the discretionary powers of planning by a state that denies all property owners their development rights. If the government were really wanting to set property owners free they would repeal the planning law. They will not because all of Britain’s redundant farms would be available for development, and the superfluity of cheap land would collapse the housing market. People could build cheap housing through any number of builders.
Without a denial of development rights imposed nationally the inflated development value of sites like the Aylesbury Estate would collapse too, making the development pointless for the developers that Javid is protecting, not opposing.
Your side of the argument has had since 1948 to make the UN Right to Housing more than a legal fiction. It can’t be done under capitalism. Maybe that is what you want to draw out, but it hardly needs an appeal to the fictitious Right to Housing to do so. Local Authorities love talking about rights, like the “Right to Return”, which is clearly a lie in places like Hackney where I live.
In Britain the planning system pre-empted the UN Right to Housing and denied development rights to everyone. But only so that Local Authorities could be used to redistribute permissions to those they decided were worthy of having their property made valuable by approval. Javid is simply saying bung the leaseholders a bit more of the huge gain to be made from a planning approval.
Planning is not benign. Local Authorities are Municipal Corporations that are in business to maximise returns on their freeholds (now they no longer build Council Houses as a subsidy to employers by keeping housing costs lower) Local Authority planners will favour their property owning constituents.
I think most public tenants know that the Local Authority is not to be trusted, though private tenants need to learn that lesson again. The Housing and Planning Act as amended by the Labour Party gave additional discretionary powers to Local Authorities to effectively licence a clientele of “good” landlords by penalising “rogues”. Those landlords will buy into developments like the Aylesbury Estate when complete, and pay the Local Authority freeholder the ground rent. The Aylesbury Estate decision has only been necessary for Javid after the embarrassment of low deals for leaseholders on estates like the Heygate. He hopes to have the Neighbourhood Planning Bill passed to smooth out the Compulsory Purchase wrinkles.
I don’t have faith in the UN’s Right to Housing. It didn’t do the Dale Farm Travellers any good, nor the residents of the Heygate, or the 18 estates in Hackney being redeveloped by Mayor Glanville. The GLA is just getting going under Sadiq Khan, with Jules Pipe promoted to generalise planned Local Authority redevelopment across London. They will happily divide leaseholders from tenants through property rights.
I think we agree on that.
We need to ask why the likes of Javid, Khan, Pipe and Glanville think they can plan for the rest of us. Of course they have that power, and they have been elected to wield it.
But in whose interest are they acting? Not the leaseholders. Certainly not the tenants. But those with planning protected property rights.
It is the planning system that is their Achilles heel. The Dale Farm travellers knew that, and so did Eric Pickles when he smashed them as Javid’s predecessor.
Regards
Ian Abley
abley@audacity.org
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