No one size fits all: grant of injunction to prevent planning breach

The law provides that the Court must carefully undertake a balancing exercise on the facts  when a local planning authority applies to court for interim injunction to prevent an ongoing breach of planning. The judgment of Mr Justice Eyre in Epping Forest District Council v Somani Hotels Limited [2025] EWHC 2183 (KB) (link) applied existing law to a high profile matter of accommodation of persons seeking asylum in the UK in a hotel in Epping Forest which has given rise to protests and newspaper reporting.

The judgment in Epping Forest demonstrates that planning law’s teeth remain sharp when called upon by a local planning authority to resolve a breach of planning control.  Enforcement powers have been exercised  in the past regarding the housing of asylum seekers in hotels, but that these decisions are highly fact-specific, and it is legally misplaced to apply one decision in one set of circumstances to another without close analysis or to assume that the outcome of application for injunctive relief will follow in other areas. 

Factual and legal background

It has been widely reported that the UK Government, through the Home Office, has for some years housed persons seeking asylum in hotels, and continues to do so. The hotels are not owned by the UK Government; they are private businesses contracting with the Home Office (in fact, via intermediary companies) to provide accommodation services to the Home Office, in order that the Home Office may discharge the UK Government’s legal obligations to those housed.

Under section 187B of the Town and Country Planning Act 1990 (TCPA), a local planning authority (LPA) may apply to the court to restrain a breach of planning control by injunction. That is in addition to the LPA’s other statutory enforcement powers such as service of an enforcement notice and a stop notice.

In the Epping Forest case, the LPA contented that the change of use of the Bell Hotel, High Road, Epping, by its owners, from a hotel to accommodation for asylum seekers was a material change of use; and that its present use now constituted a sui generis use or alternatively use as a hostel. The LPA therefore contended there was a breach of planning control and the LPA was therefore entitled to seek an injunction restraining that breach. In particular, the LPA sought the injunction on an interim basis – i.e. pending full trial of the legal issues at hand.

The position of the defendant hotel owner is that the accommodation of the hotel by asylum seekers does not constitute a change of use, and as such there has been no breach of planning control, and that no injunction should be granted, including on an interim basis.

Legal principles

The judgment was not a decision on whether either party was right about the change of use, or even whether an injunction should be made on a permanent basis. The judgment was on the narrow, but significant, question of whether an injunction would be made on an interim basis. This would be self-evidently of significance to both (i) the hotel owner, as they would be prevented from continuing accommodation by asylum seekers on penalty of civil contempt, and (ii) the Home Office and its contractors, responsible under statute or in contract for housing the asylum seekers, who would need to be housed elsewhere.

The grant of an injunction under s187B TCPA is a discretionary power, which legal authorities tell us is to be used with great delicacy and caution, depending on all the circumstances.  The ‘balance of convenient’ test common to interim injunctions applies. Reflecting the possible tension in a civil court appearing to pre-judge a planning matter democratically and constitutionally reserved to LPAs, decisions on the planning issues remain with the LPA, subject to appeal; but the question as to whether a civil injunction, enforceable by civil contempt, should be granted is reserved to the court. The relevant factors that may be in play are numerous, including whether normal statutory enforcement powers would be effective to control the alleged breach; the seriousness of the alleged breach; the nature and extent of planning harm, and urgency in bringing it to an end; all of which inform the question of the strength of the public interest in the grant of an injunction.

Decision and comment

Eyre J was keen to reiterate the statement of Mr Justice Holgate in earlier cases that the legal questions of the use of the building, and whether to grant an interim injunction, are highly fact-sensitive: “There is simply no general rule that use of a hotel to house asylum seekers either should or should not be subject to an interim injunction under section 187B.”

The court decided to grant the interim injunction, taking into account the following:-

1. Eyre J held that the LPA could not serve a stop notice in this case. If available, such a notice would immediately require the owner to cease the activity alleged to give rise to a breach of planning control. This route was not open to the LPA because the Bell Hotel was used to accommodate asylum seekers more than four years ago. Therefore, the LPA was barred by statute from serving a stop notice.
2. An enforcement notice could be served, but there would inevitably be some delay before it took effect in the absence of a stop notice, because the defendant signalled an intention to appeal the enforcement notice.
3. The defendant hotel owner deliberately decided not to apply for planning permission. It changed its position, having previously said it would do so, in good faith on advice from the Home Office, but it did so knowing that the LPA took a different view on whether the use of the hotel in accommodating asylum seekers was a breach of planning control.
4. Some limited weight was given to the fact that the accommodation of asylum seekers at the hotel had led to lawful protests.
5. Some “markedly limited” weight was to be attached to the impact of the implementation of measures being taken to address unlawful activity (such as violent protest) in response to the accommodation of asylum seekers; so too was limited weight granted to the fear that those accommodated would commit crime, especially in the circumstance (per (3) above) the hotel owner deliberately decided not to apply for planning permission, meaning the airing and ventilating of such concerns did not happen, nor the imposition of conditions as part of the grant of planning permission to assure concerned persons.
6. There was no inappropriate delay by the LPA in seeking the injunction (due to the recent change of position by the hotel owner in deciding not to apply for planning permission) – otherwise any delay, and indeed the fact of the hotel owner saying it would apply for planning permission, would have weighed against the grant of an injunction.
7. The Judge took no account of the LPA’s submission that there was a risk of irremediable harm arising from community tensions that would not heal, because in the Judge’s view this amounted to speculation.
8. The Judge considered the public interest in housing asylum seekers, as well as the real financial harm that the grant of the injunction would cause to the hotel owner, and this would be irremediable, despite the possibility of directions to ensure a final hearing as soon as practicable. The Judge took account of the fact that the breach of planning control has not been definitively established: this was still an argument to be had in due course.

In conclusion, Eyre J held that the balance of convenience lay in favour of granting the injunction.

This decision emphasises the discretionary nature of this injunctive relief. It can be obtained, and parties contemplating or aware of a planning breach in premises they own or occupy should be fully aware of that – in particular, the Judge’s comments on the deliberate nature of the decision not to apply for planning permission and the fact that this prevented a ventilation of concerns around crime, and other issues, as well as the imposition of conditions on the grant of any planning permission. Nevertheless, the Judge was keen to underline that there is no “one size fits all” rule that can be transposed across to other cases of hotels being used to house asylum seekers. Similarly, this case is the application of the law to the facts, and cannot be transposed onto other serious breaches of planning control which give rise to significant planning harm without detailed analysis.

For further information, please contact Hannah Langford, Camilla Weston or William O’Brien.