Epping Forest District Council v Somani Hotels Limited

Whether accommodating asylum seekers in a hotel amounts to a material change of use is a fact-sensitive question. The court must examine the character of the use of the land and its on-site and off-site planning consequences. The Town and Country Planning (Use Classes) Order 1987 does not itself make a change from hotel use to another use material.

On an interim injunction application under section 187B of the Town and Country Planning Act 1990, the court must exercise its discretion judicially and in light of the purpose of restraining breaches of planning control. Relevant considerations include planning harm, the integrity of the planning process, the public interest in accommodation for destitute asylum seekers, financial effects, and the risk of injustice. There is no general rule requiring, or precluding, an injunction in such cases.

The claimant local planning authority sought an interim injunction under section 187B of the Town and Country Planning Act 1990 to restrain the defendant hotel owner from accommodating asylum seekers at the Bell Hotel, Epping.

The parties agreed that the lawful use was as a hotel within Class C1. The claimant contended that the current arrangement, involving up to 138 asylum seekers accommodated under a contract with CTM (North) Ltd, was a sui generis use or hostel use and constituted an unauthorised material change of use. The defendant denied any change of use and opposed interim relief.

The issues were whether a stop notice was available, whether an interim declaration should be made, and whether the balance of convenience favoured an interim injunction pending determination of the substantive section 187B claim.

1. Stop notice. Section 183(5) of the Town and Country Planning Act 1990 prevents a stop notice where the relevant activity began more than four years before service of the notice. The reference to activity being carried out, whether continuously or not, concerns the date on which the activity started, not an aggregate period of use. The claimant therefore could not use a stop notice.
2. Interim declaration. An interim declaration was refused. Although the claimant’s case on change of use had considerable force, the characterisation of the use was fact-sensitive and the conclusion that the use was not hotel use would not itself establish a material change of use.
3. Section 187B principles. The court’s jurisdiction is original and discretionary. It must not reassess planning judgments entrusted to the planning authority, but it may assess the strength of the legal and factual arguments about change of use and may consider matters relevant to whether an injunction is just and convenient.
4. Balance of convenience. Relevant factors in favour of an injunction must relate to planning harm or the breach of planning control. They may include the public interest in the proper operation of the planning system, the deliberate decision to avoid the planning process, evidenced fear of crime, and the effects of lawful and unlawful protests, although the latter matters carried limited weight. Financial consequences for the defendant were also relevant.
5. The public interest in accommodating destitute asylum seekers and the disruption caused by moving residents were substantial factors against relief. The defendant’s financial loss was also significant. Nevertheless, the strength of the claimant’s case, the public interest in enforcing planning control, and the defendant’s deliberate decision to proceed without seeking permission meant that the risk of injustice was greater if relief were refused.
6. The balance of convenience favoured an interim injunction. The claimant was granted interim relief, with the form of the injunction and further directions to be determined after submissions.