[2025] EWCA Civ 1134

We accept the submissions of Mr Riley-Smith on behalf of Somani in his first ground of appeal that the judge was wrong to find that the fact that Somani had acted “deliberately” was a relevant factor supporting the grant of an interim injunction. The judge had rejected the Council’s argument that Somani had acted “surreptitiously” or that the breach was flagrant. But he emphasised at numerous points in the judgment (for example in [60] cited above) that by taking the stance which it did in the letter of 15 May 2025 “the defendant was deliberately confronting the claimant with a choice” between accepting the position and taking enforcement action.

It is true that the 15 May letter represented a change of position by Somani, who had previously indicated that they would apply for planning permission. But they were entitled to say, having taken advice from the Home Office, that they considered that it was unnecessary to do so.

We are not concerned with a case where a defendant has taken action in plain breach of planning control requiring an immediate response to prevent potentially irreparable harm. Nor is this a case where there is a history of a defendant repeatedly evading or defying enforcement proceedings. We do not understand the judge’s finding at [85] (albeit under the heading of delay) that the Council was entitled to bring injunction proceedings as a “last resort when other means of persuasion had failed”. The observation of Holgate J in Ipswich that the court may be more ready to grant an injunction “where conventional enforcement measures have failed over a prolonged period”, whereas the court “may be more reluctant where enforcement action has never been taken” is very much in point. Conventional enforcement measures have simply not been tried at all.

The judge’s criticisms of Somani for taking the stance that it was for the Council to take enforcement measures against them rather than for them to seek planning permission or a certificate of lawful development seems to us illogical as a factor in favour of an interim injunction. Suppose that the 15 May letter, having recorded that Somani had been advised by the Home Office that there was no material change of use of the Hotel and that therefore planning permission was not required, had gone on to say that “just to be on the safe side we are going to apply for a certificate of lawful development”. That application would, as Mr Green accepts, have fallen to be determined as a matter of fact and law, not of policy. It seems fanciful to suggest that the decision of the Council, following the outbreak of protests in July 2025, to ask the Home Secretary to stop the placement of asylum seekers at the Hotel, or to apply to the court for an injunction against Somani, would have been affected in any way.

We therefore conclude that the judge’s exercise of discretion in this case was seriously flawed by his erroneous reliance on the “deliberate breach” as a significant factor in favour of the grant of an interim injunction.