James Goudie KC triumphed on behalf of Lambeth Council in the important housing case of R (Plant) v Lambeth LBC [2016] EWHC 3324 (Admin), in which Holgate J gave Judgment in favour of the Council on 21 December 2016. All the grounds of challenge were rejected and the claim for judicial review was dismissed. The case concerned the Council’s Cressingham Gardens Estate (“the Estate”). The challenge was to a Resolution of the Council’s Cabinet to authorise the redevelopment of the entire Estate, rather than its refurbishment. The redevelopment involved the displacement of all existing tenants and owners and the demolition of existing homes prior to new building. Tenants were offered the choice of moving elsewhere as secure tenants or returning to the Estate with an assured tenancy from the Council company that would carry out the redevelopment. This company would operate outside the Housing Revenue Account (“the HRA”) and have access to sources of funding accordingly. Refurbishment on the other hand would have to be financed through HRA borrowing. This would have been neither value for money, nor, given the state of the HRA, affordable.
The challenge was primarily to the Council’s consultation process, but also to the decision itself. Holgate J emphasized (paragraph 59) the limited role of judicial review. He referred to Section 21(1), general powers of management, of the Housing Act 1985 (“the 1985 Act”) and stated (at paragraph 61): “I accept the submission of Mr Goudie KC that this provision confers a very broad discretion upon a local housing authority to manage its houses, without providing any lexicon of the matters which it is to treat as relevant”. Holgate J elaborated upon this theme at paragraphs 62-70 inclusive, notably by reference to the House of Lords decision in Pulhofer. Holgate J made reference (paragraphs 71-72) to the approach to be adopted with respect to Officer Reports to Members, and (at paragraph 73) to reliance upon advice from external consultants. On consultation, he distinguished (paragraphs 77-115 inclusive) the Supreme Court decision in Moseley, and found the consultation to have been lawful. There was no misleading. Nor was there anything irrational about the decision.
One of the grounds of challenge related to the Right to Buy (“the RTB”) of secure, but not assured, tenants, and whether the absence of a RTB at the redeveloped Estate would infringe the ECHR Article 1 Protocol 1 (“A1P1”) rights of secure tenants who might wish to exercise a RTB in the future. Holgate J held that A1P1 was not engaged. He said, at paragraph 183: “Accordingly, I agree with the submission of Mr Goudie KC that it is an intrinsic feature of a secure tenancy that it is granted subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed, if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.” Holgate J stated (paragraph 184) that it followed that the “possession” which is held by a secure tenant does not include an absolute right to exercise a RTB, irrespective of whether he continues to have a secure tenancy of that dwelling. Instead, the potential exercise of that statutory RTB is conditional upon the tenant continuing to hold the secure tenancy of his property. That tenancy may be brought to an end by the operation of the 1985 Act, which includes the redevelopment ground. This limitation which is placed upon the continued existence, and exercise, of the right to buy is imposed upon the tenancy with its bundle of rights and obligations (the “possession”) by the legislation which created the legal notions of a secure tenancy and a RTB.
James Goudie KC of 11 KBW appeared for Lambeth Council, leading Jon Holbrook of Cornerstone Chambers, instructed by Martin Hastwell of Lambeth Legal Services.
