Tag: hotels

There Was Some Controversial News In Planning This Week But Instead Let’s Focus On the Latest Ruling In The Epping Forest Asylum Seekers Litigation

The Secretary of State finally said it out loud on 11 November 2025: the proposed National Development Management Policies will be non-statutory. There will be more detail in a speech he will give “in a couple of weeks” and consultation as part of consultation on the NPPF (which presumably the NDMPs will either form part of or partly replace) “later this year” (which I take to mean Christmas Eve, again).

So, sections 93 and 94 of The Levelling-up and Regeneration Act 2023 will not be brought into force, we assume. What a lot of wasted energy that was. I’m not going to comment in this post on the rights and wrongs of statutory versus non-statutory NDMPs (even I’m getting bored of that one). But simply to note this latest reminder that we can place too much weight on legislation as an agent of change. Rolling forward, I hope people appreciate that it will take years for much of the Planning and Infrastructure Bill to come into force and to have any real effect. And that some of it inevitably will either never get that far or will be subsequently repealed. How much of the long running debate over Part 3, environmental delivery plans, will turn out to be time well spent?

Anyway, let’s move quickly on to my main topic, because I never want to be controversial.

One thing that the government has steadfastly declined to address by way either of legislation, policy or guidance is the question of whether the accommodation by the Home Office of asylum seekers in hotels constitutes, in planning law terms, a material change of use. It would have been easy to signpost a position in one direction or the other. The conclusion that must have been reached is that sometimes the best thing to say is to say nothing at all.

When I last wrote about the saga in my 29 August 2025 blog post Court of Appeal Cuts Down Epping Forest the Court of Appeal in August overturned the interim injunction that the High Court had imposed earlier that month (see my 20 August 2025 blog post Planning Law Is Being Used For Politicking About Asylum Seekers), that would have required the use of the Bell Hotel in Epping for the accommodation of asylum seekers to cease, pending a full hearing into its claim for a final injunction and a declaration that the use was in breach of planning control.

We now have the High Court’s judgment as to whether a final injunction and/or a declaration should be granted: Epping Forest v Somani Hotels Limited  (Mould J, 11 November 2025). And the High Court’s ruling is: no and no.

Mould J set out the position under section 187B of the Town and Country Planning Act 1990, which provides that where “a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction” and that, whilst “the court must not re-assess for itself the local planning authority’s planning judgment which formed the basis for that authority’s decision to apply for the injunction … the factors which, on the evidence before the court, weighed with the local planning authority in making their planning judgment may properly be considered by the court, in the context of reaching its own judgment as to whether the circumstances of the case are such as to justify the grant of an injunction. Moreover, where as in the present case, the Defendant questions the validity of the local planning authority’s decision to apply for an injunction on public law grounds, the court may properly consider the points raised in the exercise of its discretion whether or not to grant the injunction.”

Mould J went through the various considerations:

  • whilst he was prepared to accept that the “local planning authority had at least a reasonable basis for alleging and asserting that the current use of the Bell as contingency accommodation for asylum seekers is in breach of planning control”, this “is not a case in which conventional enforcement measures taken by the local planning authority over a lengthy period of time have failed to secure the effective remediation of a clear breach of planning control, which has resulted in and continues”
  • there were serious gaps in the record of the decision making which led to the conclusion that an injunction should be sought;
  • contrary to the council’s assertions, in the light of the actual chain of events and communications the hotel had not “acted in flagrant breach of planning control”
  •  any harm to the green belt and conservation area by way of the security fencing in place was “limited by the fact that it is localised and very likely to be temporary in its duration, with the fencing likely to be removed no later than by April 2026, when the Defendant’s current contract with CTM comes to an end. Moreover, the fencing was installed in response to street protests, rather than being an integral requirement of the use of the Bell as contingency accommodation for asylum seekers”
  • in terms of retaining existing visitor accommodation “the degree of harm resulting from that can be argued to be limited both by the temporary nature of the current use of the Bell and by virtue of the economic advantage to the Defendant of that current use, which is expected to assist in bringing the hotel back into conventional use in the longer term”
  • “I have heard no evidence to support the concern that the current use of the Bell is placing local GP, health, social and community services under undue pressure, to the detriment of the settled population of Epping. There is no evidential basis at all for the assertion that asylum seekers as a cohort have a greater propensity than the settled population to engage in criminal or anti-social behaviour”
  • “I have carefully considered the degree of planning and environmental harm which may reasonably be said to result from the actions or alleged actions of the three individuals accommodated at the Bell who have been convicted or charged with criminal offences since April 2025 … I accept that, in the light of those actions or alleged actions, the fears and concerns of local residents of which I have been made aware in evidence have a reasonable basis. However, the resulting degree of planning and environmental harm is limited, in my view. It has not been established that those fears and concerns are grounded in the use of the Bell as contingency accommodation for asylum seekers. They are properly to be regarded as the understandable reaction of local residents to the well-publicised criminal behaviour, actual and alleged, of three individuals who happen to have been accommodated there”
  • “Public opposition to the development of land, even if that opposition manifests itself in street protests, is not in itself evidence of planning or environmental harm generated by the development to which there is such strong objection”
  • “There are countervailing factors in this case which are properly to be weighed in the balance against the planning and environment harm which may reasonably be said to result from the postulated breach of planning control. In particular, the evidence before me clearly establishes that there is a continuing need to source contingency accommodation for asylum seekers from hotels, to enable the Home Secretary to discharge her statutory responsibilities under the 1999 Act. That consideration carries significant weight”
  • There is “no duty as such placed upon a local planning authority to enforce against unauthorised development simply because it is considered to be in breach of planning control. An informed planning judgment is required of the local planning authority as to whether enforcement action is appropriate; and, if so, as to whether the harm caused by the unauthorised development is of such a degree as to merit restraint by injunction. Proper and effective planning control is not undermined by the normal enforcement regime, which permits a person served with an enforcement notice to appeal against that notice and, unless a stop notice is served, to continue with the alleged breach of planning control at least until that appeal has been determined by the Secretary of State”

Bringing all that together:

“I have reached the clear conclusion that this is not a case in which it is just and convenient for this court to grant an injunction. I give due respect to the Claimant’s judgment that the current use of the Bell as contingency accommodation for asylum seekers constitutes a material change in the use of those premises which requires planning permission. Nevertheless, I have not been persuaded that an injunction is a commensurate response to that postulated breach of planning control. The breach is far from being flagrant. Conventional methods of enforcement have not been taken. Taking a broad view, the degree of planning and environmental harm resulting from the current use of the Bell is limited. The continuing need for hotels as an important element of the supply of contingency accommodation to house asylum seekers in order to enable the Home Secretary to discharge her statutory responsibilities is a significant counterbalancing factor. This is decidedly not a case in which there is an abuse of planning control resulting in serious planning or environmental harm which now demands an urgent remedy. In my judgment, it is not appropriate to grant an injunction on the Claimant’s application for the purpose of restraining the use of the Bell as contingency accommodation for asylum seekers.”

“It remains open to the Claimant as local planning authority to consider the expediency of taking enforcement action by issuing an enforcement notice. It is also open to the Defendant to reconsider whether it would be appropriate to apply for retrospective planning permission; or to apply to the Claimant for a certificate of lawfulness of the existing use of the Bell pursuant to section 191 of the 1990 Act. Each of those possible courses of action would enable the planning issues raised by this case to be evaluated by the local planning authority, through the transparent and consultative decision-making processes with public participation which apply under the 1990 Act and its attendant regulations.”

As for the application for a declaration that “the current use of the Bell does not amount to use as a hotel within the meaning of Use Class C1”:

Given the statutory procedures available for this to be determined, either by way of applications for certificates of lawfulness or by way  of the making of an enforcement notice (and if necessary the determination of appeals to the Planning Inspectorate) “it will  rarely be appropriate for this court to seek to resolve them beforehand through the grant of declaratory relief. In the present case, I consider that there is at least a real possibility that the Claimant and the Secretary of State on an appeal may be called upon, in the context of those statutory procedures, to determine the ongoing dispute as to whether the current use of the Bell constitutes development requiring planning permission. I have found it to be neither necessary nor appropriate to reach my own conclusions on those questions for the purpose of determining the Claimant’s application for an injunction. Instead, I have ultimately deferred to the Claimant’s judgment as local planning authority in alleging and asserting a breach of planning control. I have already addressed the propriety of the Claimant’s conclusion that it was necessary or expedient for that alleged and asserted breach of planning control to be restrained by an injunction.”

Practical outcome: the question remains unanswered by the courts as to whether, and in what circumstances, the accommodation of asylum seekers in a hotel amounts to a material change of use. Indeed, I would venture to suggest that the judgment seeks, by way of its dissection of the issues, to dampen down the moral panic that led to officer and councillor decisions to bring this litigation in the first place instead of relying on the usual statutory planning framework and processes.

Will the legal question ever be determined by the courts? I suppose it might, but most likely by way of a legal challenge to an inspector’s decision following an appeal arising from an enforcement notice or from refusal of a certificate of lawfulness. And even then, that determination will be specific to the facts and to the application of relevant local policies.

Finally, for the avoidance of doubt, I do like flags as much as the next person. I flagged these two passages in particular:

“There is no evidential basis at all for the assertion that asylum seekers as a cohort have a greater propensity than the settled population to engage in criminal or anti-social behaviour”

“Public opposition to the development of land, even if that opposition manifests itself in street protests, is not in itself evidence of planning or environmental harm generated by the development to which there is such strong objection”

Simon Ricketts, 15 November 2025

Personal views, et cetera

Heritage Harm Case; Asylum Seekers In Hotels Case

Two interesting judgments by Holgate J already this month:

Newcastle Upon Tyne City Council v Secretary of State (Holgate J, 1 November 2022)

In this case Holgate J found that the inspector in granting planning permission had taken into account a legally irrelevant consideration in assessing the level of harm caused to the neighbouring Grade I listed St Ann’s Church (paras 60-79). The inspector’s decision had accounted for the fact that the level of harm to the Church could not be further minimised by a different design. The court held however that even if the level of harm was “minimised” by the current design, this said nothing about what that “minimised” level of harm amounts to – harm to a heritage asset might be “minimised” by the design proposed but nevertheless still be “substantial”.  Another reminder of the care that needs to be taken by decision makers in relation to the NPPF heritage test heffalump traps (see also for instance my 12 December 2020 blog post, Where’s The Harm In That? Misreporting Heritage Effects).

The Judge dismissed two further grounds of challenge, including a challenge that the inspector had wrongly considered the likely deliverability of the scheme. Holgate J held that there was no reason why deliverability could not be a material consideration in the determination of a planning application/appeal if relevant to the merits of the proposal – in this case, the site was owned by Homes England and this was relevant to the likelihood of delivery given its statutory function to promote regeneration.

(Thanks to my colleague Emma McDonald for her initial summary of the case for our Town Library Planning Court Weekly Updates (subscribe for free here).

Ipswich Borough Council v Fairview Hotels (Ipswich) Limited, East Riding of Yorkshire Council v LGH Hotels Management Limited (Holgate J, 11 November 2022)

No original work from me at all this week because I’m now going to reproduce Landmark Chambers’ summary of the ruling on this important and recurring issue – I had started to draft my own but it was less concise – for any more than this do read the judgment itself):

“In a judgment handed down at 5.30pm this evening, Mr Justice Holgate has dismissed applications by two local planning authorities to continue injunctions previously granted without notice, which had the effect of preventing the use of hotels in the two authorities’ areas to accommodate asylum seekers (including those being relocated from the overcrowded facility at Manston).

The claims were brought by the two councils under s. 187B Town and Country Planning Act on the basis that using the hotels to accommodate asylum seekers would amount to a material change of use, from use as a hotel to use as a hostel.  Noting that the mere fact that a hostel was not in the same use class as a hotel did not of itself establish that the change was “material”, and that the distinction between a hotel and a hostel was “fine”, Holgate J nevertheless accepted that there was a serious issue to be tried. However, applying the American Cyanamid balance of convenience, he concluded that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it.  In particular:

1.            The distinction between use as a hostel and use as a hotel was fine. Whether there was a material difference depended upon the planning harm identified by the claimants.

2.            There would not be any irreparable damage or harm. The use would not cause any environmental damage or any harm to the amenity of neighbouring uses.  The buildings would not be altered and there would be no issues relating to traffic generation.

3.            Although there is a public interest in enforcement action being taken against breaches of planning control, the integrity of the planning system is not undermined by the normal enforcement regime, which allows alleged breaches to continue while the merits of an appeal are under consideration.

4.            The defendant’s conduct was not a flagrant breach of planning control. There were respectable arguments that planning permission was not needed.

5.            The Home office was facing an unprecedented increase in the number of asylum seekers, the vast majority of who it was under a duty to accommodate. Without the ability to contract for the use of hotels there was a real risk of some asylum seekers becoming homeless.

6.            In the claim brought by Ipswich, the Council’s concerns about the potential impact on tourism were “tepid”.

7.            The proposed use would be temporary in nature. If that turned out not to be the case there were “plenty of other weapons in the LPA’s enforcement armoury to tackle the issue”.”

Hear, hear.

Simon Ricketts, 12 November 2022

Personal views, et cetera