High Court dismisses legal challenge against 979-home Elephant and Castle revamp

Plans for the redevelopment of south London's Elephant and Castle shopping centre to provide almost 1,000 new homes have survived a High Court challenge from campaigners who argued that the mixed-use scheme would not provide enough genuinely affordable housing.

A visualisation of plans for the regeneration of Elephant and Castle. Pic: Delancey
A visualisation of plans for the regeneration of Elephant and Castle. Pic: Delancey

Developer Delancey’s application proposes 979 homes, plus 18,234 square metres of retail space in buildings up to 35 storeys high. 

Some 35 per cent of the homes would be affordable while the Elephant and Castle Underground Station would be remodelled.

There would also be 2,800 square metres of business space, 5,743 square metres of leisure uses plus a new campus for the London College of Communications.

It would involve the demolition of the Elephant and Castle shopping centre and the current College of Communications buildings.

In July 2018, the London Borough of Southwark’s planning committee voted to approve the scheme, subject to the completion of a section 106 agreement and consideration by the mayor of London. 

In December last year, the mayor of London announced that he would not be calling in the application.

Southwark subsequently granted permission in January this year after the developers signed up to a section 106 agreement promising that 35 per cent of the new homes would be affordable.

Challenging the decision, Jerry Flynn, a member of the locally-based "35% Campaign", which pushes for more social housing in regeneration schemes, argued that councillors had received misleading advice and that many of the so-called affordable homes would not genuinely fall into that category.

Although some of them would be of the traditional social rent variety, many would have different forms of tenure. 

Units described as "social rented equivalent" and "intermediate" housing were included in the 35 per cent, the campaigners argued. 

The latter would be available for sale or rent at a cost above social rent, but below market levels.

Ruling on the case, Mr Justice Dove accepted that one paragraph of the planning officers' report on which the council based its decision "was not framed with sufficient care".

It stated that an improved offer made by the developer of 116 social rented units was backed by "recently confirmed" grant funding from the Greater London Authority.

Such funding had not in fact been confirmed, and Flynn argued that councillors had been "significantly misled".

But the judge ruled that, read as a whole, the officers' report was not misleading and clearly advised councillors that the developer's commitment to providing the 116 units was not "in any way conditional upon grant funding being secured".

The developer argued that its offer was "policy compliant in the sense that it had been accepted...that the affordable housing offer, including the 116 social rented units, was the most that the development proposal could viably support".

Had a higher number of social rented units been required by the council, the company said it "would have refused to agree to providing it".

The judge said there was "considerable force" in that argument. Independent consultants engaged by the council had "concluded that the scheme was bearing as much affordable housing as was viable."

He added: "The quality of tenure enjoyed by tenants in social rented equivalent properties are, as the nomenclature suggests, equivalent to those in social rented properties."

Dismissing Flynn's challenge, the judge concluded that, even had he detected an error of law in the council's decision-making process, he would have declined to quash the planning permission.

R on the Application of Jerry Flynn v London Borough of Southwark. Case Number: CO/807/2019

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