Section 187B of the Town and Country Planning Act 1990 gives Local Planning Authorities the power to seek injunctions to prevent breaches of planning control. The Council argued that there had been a material change of use of the Bell Hotel from use as a hotel to use as a hostel, and that this was a breach of planning control which should be prevented through the use of an injunction.
The operators of the hotel disputed that there was a material change of use, saying that the current use was still a hotel, notwithstanding the nature of the occupants, and that even if there was a breach of planning control, the use of an injunction was not appropriate.
Was there a breach of planning control?
Hotels are a type of use which is within Use Class C1 of the Town and Country Planning (Use Classes) Order 1987, whereas the Order specifically states that a hostel is a form of accommodation which falls outside of Class C1. This means that if the use of a property changes from a hotel to a hostel it will usually require planning permission. The question of whether a particular property is being used as a hotel or as a hostel is not always easy to answer. The Courts have previously said that there is a fine distinction between the two uses and each case will need to be decided on its specific facts.
The judge in the Epping Forest case did not consider that it was necessary to make a ruling on this question in relation to the use of the Bell Hotel. He accepted that the Council had a reasonable basis for alleging there was a breach of planning control, saying:
“I give due respect to the Claimant’s judgement that the current use of the Bell as contingency accommodation for asylum seekers constitutes a material change in the use of those premises which requires planning permission”.
However, that is not the end of the matter. Just because there is a breach of planning control, it does not automatically follow that the Court should grant an injunction to restrain that breach. The Court must also be satisfied that it is just and convenient to do so.
Was an injunction the correct response to the breach of planning control?
The judge had to balance competing factors for and against granting the injunction. He concluded that an injunction was not a commensurate response to the alleged breach of planning control.
In reaching that decision he identified a number of considerations. These included:
- The fact that the Council had not properly recorded how it had arrived at the decision that there was a breach of planning control and that it was appropriate to seek an injunction, despite the Council’s scheme of delegation requiring this.
- Local Planning Authorities have a range of powers to deal with planning breaches. These include the power to issue enforcement notices under s.172 of the Town and Country Planning Act 1990. The use of the Bell Hotel for the accommodation of asylum seekers had been taking place for various periods since 2020. The Council had plenty of opportunities to issue an enforcement notice but had not done so. This undermined the argument that the Council was dealing with a flagrant breach of planning control which needed to be urgently restrained. The service of an enforcement notice would have given an opportunity for the Council (and a planning inspector on appeal) to properly assess whether there was indeed a breach of planning control.
- The Council could not show that the amenity impacts of the use of the Bell Hotel were serious enough to justify their immediate cessation through the use of an injunction. For example, the security fencing which had been erected was accepted to be detrimental to amenity, but this was put up in response to the public disorder targeting the Bell Hotel, rather than as a result of the use itself.
- The Court accepted that occupiers of the Bell Hotel had been responsible for some crime, including a serious sexual assault. It was also accepted that public fear of crime arising from the use to accommodate asylum seekers was a factor which should be taken into account. However, there was no evidence that asylum seekers were more likely to commit criminal or anti-social behaviour than the local population.
- The Council said that the trigger for seeking the injunction was the protests which had taken place in the summer of 2025. However, the Court said that this was not the same as saying that the use itself was harmful. The judge commented that:
“. . . if the mere fact of protests is treated as material planning and environmental harm, this runs the risk of incentivising further protests, some of which may be disorderly around asylum accommodation.”
The Courts decision was welcomed by the Government, which had been concerned that an injunction would have impacted on its ability to effectively manage the asylum system and to carry out its legal duties to provide accommodation and other support to asylum seekers who would otherwise be destitute.
Epping Forest District Council, and many of the local resident, expressed their disappointment at the decision. It remains to be seen whether there will be a further appeal against the High Court decision or whether the Council will decide to take further action through the service of an enforcement notice.
DMH Stallard’s expert planning lawyers and consultants have the knowledge to help you comply with planning regulations and seek effective change of use class where needed. Contact the team today by email or call +44(0)3333 231580.
