[2025] EWCA Civ 1134

We were told by counsel for the Council that the protests operated as a “trigger” for the application for the injunction. The fact of protests outside a building is not an obvious matter which falls within planning control.

The judge, while noting at [71] that “considerable caution is needed before any weight is given to this factor”, went on at [72] to note the Council’s contention that use of the Hotel to accommodate asylum seekers was unlawful by reason of being a material change of use and that if interim relief is refused and that contention is ultimately found to be correct, the amenity of local residents will have been affected “by protest against an unlawful use in which the defendant had engaged in breach of planning control”, and held that this aspect of the matter should be taken into account in favour of the grant of an injunction on the balance of convenience, albeit as a factor of limited weight. At [73]-[74], having noted that “even greater caution is needed before any weight is attached to the consequences of unlawful activity in which persons hostile to the current activity at the Bell have engaged”, the judge concludes nevertheless that this too is a factor to be taken into account determining the balance of convenience “though the weight that can be attached to it is markedly limited”.

These are, in our view, very worrying aspects of the judgment. There is force in Mr Brown’s submission that if an outbreak of protests enhances the case for a planning injunction, this runs the risk of acting as an impetus or incentive for further protests, some of which may be disorderly, around asylum accommodation. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness. The judge does not appear to have considered this risk, perhaps because he had denied himself the advantage of hearing submissions on the merits from counsel for the SSHD.

Both Mr Riley-Smith and Mr Brown submit, with justification it seems to us, that the judge did not appear to consider what alternative measures to mitigate the disruption caused by protests were available. Epping do not appear to have considered such alternatives either. These could either be measures taken by the police pursuant to s 14 of the Public Order Act 1986, such as in fact occurred, or an application by the Council for an injunction against certain forms of protest.