Fenland District Council v CBPRP Limited & Ors.

An interim injunction restraining an alleged breach of planning control should be granted only where the restraint is commensurate with the harm relied upon. The court must assess the seriousness and evidential basis of the alleged planning harm against the public and practical need for the challenged use to continue pending trial. Generalised evidence of social, policing or exploitation risks will carry limited weight without a demonstrated connection to the proposed use. Refusing an injunction does not authorise an unlawful use; the local planning authority remains able to pursue statutory enforcement. A hotel bedroom without kitchen or cooking facilities is not a “dwelling” for the purposes of the statutory restriction on stop notices.

Fenland District Council, the local planning authority, sought an interim injunction under section 187B of the Town and Country Planning Act 1990. It sought to restrain the use of the Rose and Crown Hotel in Wisbech as a hostel for accommodating asylum seekers, alleging a material change of use from hotel to hostel.

The defendants accepted that there was a triable issue as to whether a breach of planning control had occurred and that damages would be inadequate. The Council relied principally on alleged planning harm and risks to the safety and welfare of asylum seekers in Wisbech. The central issue was whether immediate restraint was justified on the balance of convenience.

1. Application refused. The court accepted that there was a serious issue to be tried as to whether the use of the hotel constituted a material change of use from hotel to hostel. Damages would not be an adequate remedy. The decisive question was the balance of convenience.
2. The principles stated in Ipswich Borough Council v Fairview Hotels (Ipswich) Limited & Serco Limited; and East Riding of Yorkshire Council v LGH Hotels Management Limited & Ors [2022] EWHC 2868 (KB) applied. The immediate restraint of the use had to be commensurate with the alleged planning harm. The public interest in maintaining the integrity of the planning system was relevant, but the remedy remained fact-sensitive.
3. The alleged loss of hotel use attracted little weight. The use was temporary, and the Council retained its ordinary enforcement powers under the Town and Country Planning Act 1990. There was no evidence of environmental harm, harm to amenity, harm to the character or appearance of the area, or traffic or highway impacts.
4. The evidence concerning risks to asylum seekers was generalised and insufficiently connected to their accommodation in a staffed and secured hotel. Evidence concerning policing resources, exploitation, homelessness, antisocial behaviour and social tensions did not demonstrate a serious level of current risk. Nor did it justify requiring further evidence about alternative accommodation.
5. The need for contingency initial accommodation was substantial and arose in the context of statutory duties under sections 95 and 98 of the Immigration and Asylum Act 1999. Restraining the use of the hotel would not have been commensurate with the harm established on the evidence.
6. Refusal of the injunction did not authorise unlawful activity. If a breach of planning control had occurred, the Council could pursue enforcement action under the Town and Country Planning Act 1990. A hotel bedroom without kitchen or cooking facilities was not a “dwelling” within section 183(4), so that provision did not materially strengthen the case for an injunction.

This was a first-instance application. An earlier without-notice application concerning the Rose and Crown Hotel had been refused by Mr Justice Jay as procedurally inappropriate. The on-notice application was determined by Mr Justice Holgate on 23 November 2022.