Ipswich Borough Council v Fairview Hotels (Ipswich) Limited & Anor

A change from hotel use to a hostel use does not itself require planning permission. Under the Town and Country Planning Act 1990, the question is whether the change is material in planning terms, assessed by its effect on the character of the use and its on-site and off-site planning consequences. The Use Classes Order does not deem a move from Class C1 to a sui generis hostel to be material development.

An injunction under section 187B is discretionary. The court must decide whether immediate restraint is just, proportionate and commensurate with the alleged planning harm. Where the breach is arguable and the asserted harm is limited, temporary and remediable through ordinary enforcement, the balance may favour refusing interim relief despite a strong public interest in planning control.

Two local planning authorities sought to continue without-notice interim injunctions preventing hotels from accommodating asylum seekers as initial accommodation under arrangements with the Home Office. Ipswich Borough Council alleged that the Novotel Ipswich Centre Hotel would undergo a material change from hotel to hostel use. East Riding of Yorkshire Council advanced an equivalent claim concerning the Humber View Hotel.

The hotels would be block-booked for asylum seekers, but would retain hotel rooms, staff, catering, cleaning and reception services. The councils alleged planning harm arising principally from the temporary unavailability of hotel accommodation. The defendants disputed that there would be a material change of use and relied on the acute statutory need to accommodate destitute asylum seekers.

The central issue was whether the injunctions should continue until trial under section 187B of the Town and Country Planning Act 1990.

1. Applications refused. There was a triable issue in each claim as to whether the proposed use would be a hostel and whether any change would be material in planning terms. That issue did not justify continuing either injunction until trial.
2. A hotel-to-hostel distinction is fact-sensitive and fine. The relevant inquiry is the character of the land use, not the purpose of a particular occupier. The court must assess both on-site and off-site planning effects. The Town and Country Planning (Use Classes) Order 1987 merely excludes changes within a use class from development control. It does not make a change from a Class C1 hotel to a sui generis hostel a material change of use. The contrary implication in Carespec Limited v Wolverhampton City Council [2016] EWHC 521 (Admin) was not reconcilable with the proper legal approach.
3. Under section 187B, following South Bucks District Council v Porter [2003] 2 AC 558, the court exercises an original discretionary jurisdiction. It must decide whether an injunction is just and convenient, giving weight to the public interest in planning control but balancing the seriousness and urgency of the alleged harm, the effectiveness of ordinary enforcement, hardship and all competing interests. Irreparable harm is a relevant factor in a quia timet case, but not a threshold condition imposed on section 187B.
4. The councils had not shown substantial planning harm. The alleged loss of hotel accommodation was temporary, no environmental, amenity, traffic or character-and-appearance harm was alleged, and ordinary planning enforcement remained available. Conversely, an injunction would materially impede urgently needed contingency accommodation for destitute asylum seekers and, for the Humber View Hotel, risk the hotel’s financial viability. The wider accommodation programme also meant that the status quo was not confined to the individual hotels. Immediate restraint was not commensurate with the asserted planning harm.

not stated in the judgment.