Great Yarmouth Borough Council v Al-Abdin & Ors

An interim planning injunction may restrain an apprehended material change of use where there is a serious issue to be tried, damages are inadequate, and the balance of convenience favours restraint. The distinction between hotel and hostel use is fine and fact-sensitive; development-plan policies may be relevant to the character of the use. A strong, specific policy protecting a tourism area can strengthen the case for both breach and immediate restraint, even without physical, environmental or amenity harm. Relevant factors include flagrancy, planning history, the effectiveness of ordinary enforcement, disruption to occupants, statutory accommodation pressures and practical alternatives.

Great Yarmouth Borough Council sought a quia timet injunction under section 187B of the Town and Country Planning Act 1990 to prevent the Villa Rose Hotel, and more broadly hotels within the Policy GY6 seafront area, from being used as hostels for asylum seekers. A 2006 enforcement notice prohibited hostel use at the Villa Rose. An ex parte injunction had been granted on 23 November 2022. The issue was whether the proposed use would involve a material change from hotel to hostel and whether interim restraint was justified pending trial.

Application allowed. The interim injunction was continued until trial in respect of the Villa Rose Hotel and other hotels within the Policy GY6 area.

1. The court applied the principles in American Cyanamid v Ethicon (No.1) [1975] AC 396 and South Bucks District Council v Porter [2003] 2 AC 558. There was a serious issue to be tried as to whether the proposed use would amount to a material change from hotel to hostel. The distinction was generally fine and depended on fact and degree. Development-plan policies could be relevant to the character of the use, as illustrated by Wilson v West Sussex County Council [1963] 2 QB 764.
2. Policy GY6 was a highly specific and protective policy directed at the principal tourism area. The proposed use involved block-booking for a single cohort, management of residents’ movements, long occupation, closure to public bookings and little local expenditure. These features supported the Council’s case, notwithstanding that the premises would not be physically altered and would retain some hotel-like operations.
3. Damages would be inadequate for the Council. The absence of a cross-undertaking in damages was accepted, applying Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227.
4. The balance of convenience required immediate restraint to be commensurate with the planning harm. The absence of physical or environmental harm did not prevent substantial planning and economic harm. The strong policy, the extant enforcement notice, the criminal consequences of breach and the defendants’ conduct made the apprehended breach flagrant. The ordinary enforcement regime had not been effective.
5. The statutory accommodation duties under sections 95 and 98 of the Immigration and Asylum Act 1999, and the urgency of finding accommodation, attracted substantial weight against an injunction. So did the possible disruption caused by later relocation. However, the defendants gave no adequate explanation why hotels outside the GY6 area could not be used. The factors favouring continuation of the injunction plainly outweighed the opposing considerations.
6. Section 171B(3) of the Town and Country Planning Act 1990 concerned the period for taking enforcement action and did not cause an enforcement notice served within that period to expire. Under section 181, compliance did not discharge the notice, and a discontinuance requirement operated permanently. Section 285(1) restricted later challenges to the notice’s validity on grounds available by appeal; the possible nullity argument was left open for any final trial.

No appeal was involved. The judgment records that Julian Knowles J granted an ex parte injunction on 23 November 2022. The present court continued that injunction pending judgment and then ordered that it continue until trial.