[2025] EWCA Civ 1134

Having set out the facts at [1]-[22] of his judgment, the judge turned at [23] to the relevant legal framework. He noted that the application was for an injunction pursuant to section 187B of the 1990 Act, which so far as material provides:

“(1)

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, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2)

On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”

The judge referred to the decision of Holgate J (as he then was) in Ipswich BC v Fairview Hotels (Ipswich) Ltd [2022] EWHC 2868 (KB) (“Ipswich”), to which we shall return. The judge noted at [25] that “whether the current use of the Bell as accommodation for asylum seekers is lawful depends on the answers to two questions. First, whether such use is a change from the permitted use as a hotel. Second, whether, if there is such a change, it is a change which is material in terms of planning considerations.” He said at [27]-[28]:

“27.

If there has been a breach of planning control the paradigm or normal method for a local planning authority to take action is by service of an enforcement notice under section 172. Such a notice must be served not less than 28 days before the date when it is to take effect (section 172(3)(b)). The effect of a notice in the circumstances of this case would be to require the Defendant to cease use of the Bell as accommodation for asylum seekers. Section 174 gives a person on whom an enforcement notice is served a right to appeal to the Secretary of State and such an appeal will normally be determined by an inspector. When an appeal is made the enforcement notice is of no effect until the appeal is either determined or withdrawn (section 175(4).

28.

Section 183 empowers a local planning authority to serve a stop notice which requires a relevant activity to cease before the period for compliance with an enforcement notice has expired. However, section 183(5) provides that:

“A stop notice shall not prohibit the carrying out of any activity if the activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the notice; and for the purposes of this subsection no account is to be taken of any period during which the activity was authorised by planning permission.””

The judge quoted at length from the decision of the House of Lords in South Bucks DC v Porter [2003] 2 AC 558. Having done so, he noted that the questions of whether there has been a change of use and whether the change was material involved matters of law and of fact. Both questions, he held, are ultimately fact-specific and call for the application of planning judgement to particular circumstances. He noted that the application before him was for an interim injunction to last until the final determination of the section 187B application and that the House of Lords had set out guidelines governing such cases in American Cyanamid v Ethicon [1975] AC 396 (‘American Cyanamid’).He noted that in the Ipswich case, Holgate J had considered the approach to be applied in such cases where there is an issue about hotels being used to accommodate system seekers. He noted that Ipswich was one of three cases of the same type decided by Holgate J in November and December 2022. He cited the following passage from Ipswich where Holgate J said:

“[110] In my judgment a convenient starting point is the statement of the Court of Appeal in the Westminster case that the distinction between hotel and hostel use is fine. In each case before this court there are factors pointing for and against the proposed use being a hostel use. Even if a hostel use would be involved, the key question still remains whether it would represent a material change of use. That would depend upon the planning consequences of the change. In each case that turns upon the planning harm identified by the claimant.

[111] The nature and extent of that harm also goes to the seriousness of the alleged breach and the urgency or otherwise of bringing it to an end. During the course of the hearing Mr. Thomas rightly accepted that the claimants’ justification for continuing the injunctions depends upon the seriousness of that alleged planning harm. Put another way, would the immediate restraint of the proposed use by injunction, rather than the use of other enforcement action, be “commensurate” with that harm.

[112] The claimants accept that in each case the proposed use would not cause any environmental damage, or any harm to the amenity of neighbouring uses, or any harm to the character and appearance of the area. The buildings would not be altered. There would be no issues relating to traffic generation.

[113] If an injunction is not continued, because such relief is not commensurate with the harm alleged, and other enforcement action were to be successful subsequently, the alleged hostel use could be brought to an end and the property then made available for hotel use. Accordingly, there would not be any irreparable damage or harm. Mr. Thomas points out that the non-availability of the property for hotel use over that period could not be reversed. But by definition, that harm will have been judged to be insufficient to justify the continuation of the injunction until any trial.

[114] Undoubtedly there is a public interest in enforcement action being taken against breaches of planning control. But, as Mr. Brown submitted, the integrity of the planning system is not undermined by the normal enforcement regime, which allows an alleged breach of planning control to continue while the merits of an appeal are under consideration, unless, of course, a stop notice is served. The real question, therefore is, what is the strength of the public interest in an immediate injunction being granted before an alleged breach of planning control even begins. That depends upon the nature and extent of the harm alleged.”

The judge concluded at [42] that:

“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 next issue considered by the judge was the argument of Mr Riley-Smith for Somani that it was not necessary for the Council to seek an injunction under s.187B to stop use of the Bell because it could couple the service of an enforcement notice with a stop notice under s.183 of the 1990 Act. He held that since the Hotel was first used to accommodate asylum seekers more than four years ago, Mr Coppel KC for the Council was correct to say that it would not be open to the Council to serve a stop notice because of the provisions of s.183(5). He considered that if instead of seeking an injunction the Council were to proceed by way of issuing an enforcement notice, considerable delays would be likely and the matter “would be unlikely to be resolved until the early part of 2026 at the earliest”. As to the time that court action would take, the judge said at [48]:

“If an interim injunction were not to be granted and the section 187B application were to continue a further period of time would pass before the matter was resolved. Time would be needed for the filing of further evidence and responses. Court time would need to be found and time would be needed for a hearing and for the judge to come to a decision. As a matter of reality even if a shortened timetable were to be imposed on the parties it is unlikely that a final decision on the section 187B application will be made until towards the end of this year.”

However, the judge gave directions for the trial of the substantive injunction application to take place in the week of 13-17 October 2025.

The judge went on to note that it was common ground that there were two competing considerations, each of considerable weight which had to be taken into account when the court determines balance of convenience. In favour of the Council and the grant of an injunction was “the strong public interest in the enforcement of planning control”. On the other hand, a factor of considerable force in favour of Somani and against the grant of interim relief is the important public policy objective of accommodating destitute asylum seekers.

The judge turned next to the issue of “the proper characterisation of any breach of planning control by the defendant”. Mr Coppel KC had submitted that Somani’s behaviour had been “surreptitious” and that the breach of planning control was “flagrant”. On this the judge said:

“59.

The alleged breach of planning control is not flagrant in the sense of being a clear breach taken in deliberate defiance of the controls on development. There is genuine scope for debate as to whether there has been a change of use and still more as to whether the change is a material one. The Defendant has, moreover, acted openly. This is not a case where a person has sought to conceal their actions hoping that the planning authorities would not be alerted to what was happening until facts had been created on the ground.

60.

Although the Defendant has not acted surreptitiously it has acted deliberately. The Defendant was aware that the Claimant through its planning officers had consistently taken the view that if the Bell was lawfully to be used to accommodate asylum seekers permission for change of use would be needed. Initially, the Defendant had indicated that it would seek planning permission. That position then changed. The Defendant decided not to seek planning permission. It did so after receiving advice from the Home Office and as a result of that advice the Defendant adopted the position that planning permission was not needed and that the use of the Bell to accommodate asylum seekers was not a material change of use. That position was adopted in good faith and the Defendant acted openly. It did so, however, knowing that the Claimant as Local Planning Authority took a different view. So, although the Defendant's action was neither flagrant nor surreptitious it was deliberate. The Defendant was deliberately confronting the Claimant with a choice between either accepting the position and abandoning the Claimant’s consistently expressed understanding of the legal position or taking enforcement action. It is a significant consideration that the effect of the Defendant's deliberate decision is that unless injunctive relief is given the Claimant and the residents of Epping will have to bear with the consequences of the use of the Bell to accommodate asylum seekers until the lawfulness of that use has been determined through the enforcement process. If that use is ultimately found to have been lawful (on the footing that the Defendant is right to say that it is not a material change of use) then that will not have been any detriment. If, however, the Claimant is correct in saying that the use is unlawful then there will have been detriment resulting from the Defendant's deliberate decision. It is also relevant that as a consequence of the Defendant's deliberate decision there has not been the structured and considered assessment of the position through the planning process to which I referred above and which is one of the purposes of the system of planning control. The force of that point will have to be considered against the argument for the Defendant that there has been no material change of use and so no requirement for such consideration.”

The next issue was whether the factors in favour of an injunction in the balancing exercise were to be limited to questions of planning harm. The judge said:

“63.

The purpose of an injunction under section 187B is the restraint of a breach of planning control. The claimant in such a case is seeking relief in its capacity as a local planning authority. Matters which are not material to the existing or anticipated breach of planning control cannot be relevant to the purpose of seeking the injunction. The court must look at the balance of convenience from that starting point or through that lens. The question of the balance of convenience cannot be addressed in the abstract or by reference to some general question of desirability.

64.

It follows that to be relevant to the balance of convenience as a factor in favour of an injunction a matter must relate to planning harm or to the breach of planning control. I do not understand Holgate J to have been excluding the latter element which is very closely related to the former but to the extent that it was I respectfully differ from his approach. Matters relating to the breach of planning control are relevant because in seeking an injunction under section 187B a local planning authority is acting to address the breach of planning control. The section refers to matters in those terms and I have explained above the role which the planning control system plays in ensuring the open and structured consideration of proposals for development. Although the prevention of planning harm is a major element in the public interest in the enforcement of planning control it is not the only one and the interests which the Claimant here is acting to protect include those of the public in the proper operation of the planning control system.

65.

It follows that the factors to be taken into account must be such as are at least potentially relevant in the process of considering whether planning permission is warranted or not. Matters which would be wholly irrelevant in that process can play no part in the consideration. However, the fact that particular concerns could be assuaged or addressed in the course of the consideration of a planning application or of an appeal against an enforcement notice does not mean that those matters cannot be taken into account in the balance of convenience. That is particularly so in circumstances such as those here where the Defendant made a deliberate decision not to seek planning permission but to take its stand on the view that the use of the Bell to accommodate asylum seekers was not a material change of use.

66.

In addition, although the court is to assess the balance of convenience in the context of the purpose of section 187B it must remember that the purpose of having regard to the balance of convenience is to seek to minimise the risk of injustice if a different view of the merits or appropriate course is ultimately taken. Here the risk of injustice to the Claimant is of the consequences if the injunction is refused and it is ultimately found that the current operation at the Bell was unlawful and should have been restrained. The risk of injustice to the Defendant is of the consequences if the Defendant is restrained from a use which is ultimately found to have been lawful and which should have been permitted to continue.”

At [70]-[74], the judge considered the relevance firstly of lawful protests and secondly of unlawful protests and activities in opposition to use of the Bell to accommodate asylum seekers. He said:

“The Relevance of Lawful Protests about the use of The Bell.

70.

There have been lawful protests against the use of the Bell to accommodate asylum seekers. Those protests have caused a degree of disruption to the lives of local residents. Mr Riley-Smith accepted that the consequences of lawful protests can in some circumstances be a material consideration operating against the grant of planning permission but said that such protests were not of themselves a matter of planning harm.

71.

Considerable caution is needed before any weight is given to this factor. The public generally are expected to tolerate a degree of disruption from lawful protest. It is a matter of degree but an element of disruption from such activity is part of the price to be paid for living in an open society. In addition, the fact that a proposed use will attract protest cannot, without more, be a ground for a refusal to permit an activity which would otherwise be acceptable in planning terms. The threat of protest cannot operate as a veto to prevent otherwise acceptable activity. All will depend on the circumstances and there will be particular limited circumstances in which either the degree of protest or particular features of the location of the relevant site will be such that the prospect of lawful protest can operate as a material consideration against the grant of permission.

72.

However, the position in this case is that the Claimant contends that the use of the Bell to accommodate asylum seekers is unlawful by reason of being a material change of use from the lawful use. If interim relief is refused but that contention is ultimately found to be correct then the amenity of local residents will have been affected not by protest against a lawful use but by protest against an unlawful use in which the Defendant had engaged in breach of planning control. That aspect of the matter is factor which it is appropriate to take into account as standing in favour of the grant of relief in the assessment of the balance of convenience albeit as a factor of limited weight.

The Relevance of Unlawful Activity in Opposition to the Use of the Bell.

73.

Even greater caution is needed before any weight is attached to the consequences of the unlawful activity in which persons hostile to the current activity at the Bell have engaged. The measures taken to address that activity have had an effect on the amenity of local residents. However, just as there is to be a degree of toleration for lawful protest even more so is there to be acceptance of measures taken to address unlawful activity. The price to be paid for knowing that a citizen's own lawful activity will be protected against disruption by the unlawful actions of others (and protected if need be by measures disrupting the lives of others) is an acceptance of disruption caused by measures taken to protect the lawful activity of other citizens.

74.

If the Defendant’s use of the Bell were to be established to be unequivocally lawful then matters would end there. There could be no question of the unlawful actions hostile to that use being taken into account. The difficulty for the Defendant is that this is not the position. There is a prospect of the court ultimately concluding that the Defendant’s use of the Bell is unlawful. Of course, even if the use were found to be unlawful by reason of being an unauthorized material change of use that would not justify the unlawful actions of those hostile to that use and to some extent local residents must remain accepting of the measures taken to address those actions. Nonetheless, account is to be taken of the impact on the amenity of local residents of the measures taken to address the unlawful actions of those hostile to the use of the Bell. The prospect that those measures (with the consequent impact on amenity) will have been taken to protect activity by the Claimant in breach of planning control is factor to be taken into account in determining the balance of convenience though the weight which can be attached to it is markedly limited.”

The judge went on to hold that the fear of crime being committed by those accommodated in the Hotel was a relevant factor to be considered in the balance of convenience but was a factor of limited weight. Mr Riley-Smith does not quarrel with that part of the decision.

The judge considered next whether an interim injunction was to be refused on the grounds of delay on the part of the Council. He said:

“83.

A person seeking interim relief from the court must show that there has been no undue delay in coming to the court for that relief. The current use of the Bell to accommodate asylum seekers began in early April 2005. The claim for an injunction was not issued until 11th August 2025. Should I conclude that there has been delay on the part of the Claimant such as either to preclude the grant of interim relief or to weigh in the balance of convenience against the grant of relief?

84.

It was only on 15th May 2025 that the Defendant told the Claimant's planning officers that it would not, as had been anticipated, apply for planning permission for a change of use. The Claimant is not to be criticized for failing to seek an injunction before then. It was entitled to proceed on the basis that an application would be made and would be considered as a normal part of the planning process. Indeed, if the Claimant had sought an injunction before then it would have had to disclose the fact that an application for permission was anticipated and this would have been a potent consideration against the grant of an injunction.

85.

In respect of the period since then the Claimant's stance is that it has come to court as a last resort after other forms of persuasion have failed and after its concerns have been heightened by events. I am satisfied that there was no inappropriate delay. The Claimant is not to be criticized for awaiting developments before coming to the court. It is of note that there is no suggestion that the Claimant caused the Defendant to believe either that it was accepting the Defendant's argument that there had not been a material change of use or that it regarded this use of the Bell as acceptable.

86.

Therefore, if interim relief is otherwise justified it is not to be refused on the ground of delay on the part of the Claimant.”

The judge noted at [93] that the normal course in considering an interim injunction application is that once a serious issue to be tried has been shown the court does not need to assess the strength or weakness of the case being put forward, nor to have regard to it in the balance of convenience. He went on to note that each party said that this was an exceptional case: the Council because its case was so strong, Somani because the Council’s case was so weak. The judge held at [95] that “it is therefore necessary for me to assess the strength of the parties’ respective cases”. He then set out at length the factors operating against a finding that there had been a change of use and the factors supporting the finding of a change of use. He said at [101]:

“101.

In considering the strength of the Claimant’s case on this question I have had regard to Holgate J’s reminder that the Court of Appeal has said that the distinction between hotel and hostel use is a fine one. Although a fine one the distinction is a real one and I come back to the point that the question is not whether the current use is as a hostel but whether there has been a change from use as a hotel. In light of the factors I have just set out there is very considerable force in the contention that there has been such a change here. Mr Coppel’s point that “the Bell is not a hotel for those who are placed there” is a powerful one.”

Similarly, on the question of whether the change of use was material, he held at [103]:

“103.

I remind myself of the limitations of the material before me and of the need for considerable caution in making an assessment of the prospects at the interim stage. Nonetheless, the strength of the Claimant’s contention that there has been a material change of use is such that it operates as a factor in favour of the grant of an injunction in assessing where the balance of convenience falls.”

Finally, the judge assessed the balance of convenience:

“104.

Determining where the balance of convenience falls is not an arithmetic exercise in which a particular numeric value is attached to the relevant factors and a calculation then made of whether there is a higher total in one column or the other. Instead, matters are to be seen in the round having regard to the purpose of the balancing exercise which is to minimise the risk of injustice being caused by the decision to grant or to refuse interim relief.

105.

The factors operating in favour of granting interim relief are as follows. It will be seen that the reasoning underlying a number of these factors is more fully set out above.

106.

The public interest in the enforcement of planning control is a factor of particular importance.

107.

Although the Defendant’s actions were not flagrant or surreptitious they were deliberate. The Defendant acted in good faith but chose to take its stand on the position that there was no material change of use. The Defendant did so in the knowledge the Claimant as local planning authority took a different view and believed that permission was necessary. It thereby side-stepped the public scrutiny and explanation which would otherwise have taken place if an application for planning permission or for a certificate of lawful use had been made. It was also deliberately taking the chance that its understanding of the legal position was incorrect. This is factor of particular weight in the circumstances of this case.

108.

The strength of the Claimant’s contention that there has been a breach of planning control and that the current activity is the result of a material change of use is such that exceptionally it is a factor to be taken into account in the balance of convenience in support of the grant of interim relief.

109.

For the reasons set out above the fear of crime resulting from the use of the Bell; the need to address lawful protests; and the consequences of the actions taken to address unlawful activity are relevant factors in support of interim relief. There are all factors of limited weight and the weight diminishes as one moves along that list. They are, however, matters having an effect on the amenity of local residents through the fear of crime and the need to address the reactions which that use has generated. If the use continues and is ultimately found to have been unlawful the position in respect of those matters can revert to its former state. However, those whose amenity has been affected in that period will not be compensated and to that extent there is a risk of irremediable harm.

110.

Related to the preceding factor and a consideration in the weight being attached to it is the fact that the Claimant’s application is based on concerns arising from the actual use of the Bell. Unlike the situation in the Ipswich, Fenland, and Great Yarmouth cases the relief sought is not precautionary. There is force in the Claimant's contention that it is not inviting the court to speculate as to the impact on amenity which might result from a future use but is pointing to an impact on amenity which has already been suffered and is continuing.

111.

The Claimant submitted that there was a risk of irremediable harm in that prolonged continuation of the use of the Bell could result in community tensions which would not heal. That amounted essentially to speculation and I take no account of it.

112.

The Claimant pointed to two of the planning policies in the relevant local development plan and said that the use of the Bell to accommodate asylum seekers was inconsistent with those. The situation was markedly different from that of the narrowly-focused and clearly relevant planning policy with which Holgate J was concerned in Great Yarmouth and I attach no weight to this consideration.

113.

The factors operating against the grant of interim relief are as follows.

114.

The most important factor against the grant of interim relief is the importance of the public interest in the accommodation of destitute asylum seekers. As noted above that is a public interest recognised by the imposition of a statutory duty on the Home Secretary and the use of the Bell to accommodate asylum seekers is an element in the performance of that duty. This is coupled with the consideration that those currently accommodated in the Bell will required to move if interim relief is given and there will be a consequent disruption to their lives. All of them are now registered with local medical practices and there will be disruption in that respect as well as in the move to a different location. In that regard I reject the Claimant's contention that it will be less disruptive for those at the Bell to move now than it would be if they had to move later if an injunction is refused now but is ultimately granted.

115.

The financial effect on the Defendant if it is not able to use the Bell to accommodate asylum seekers is also a consideration of real weight. If the current use ceases the Bell will not, at least in the medium term, return to hotel use and there will be a real financial impact on the Defendant. There will be some scope to limit this by giving directions to ensure that the final hearing is as soon as practicable but there will nonetheless be such an effect and it will amount to irremediable harm suffered by the Defendant.

116.

The breach of planning control has not been definitively established. Although I have concluded that the strength of the Claimant's case is such that it weighs in favour of granting interim relief it is to be remembered that a final decision has not been reached and it is possible that the final conclusion could be that the Defendant is right to say that there has been no breach of planning control.

117.

The Bell was formerly used to accommodate male asylum seekers without difficulty and another hotel in the Claimant’s area is also being used for such accommodation without difficulty. The Defendant contends that the current application has been triggered by unlawful activity to which no weight should be attached and by unjustified speculation. I have explained above the limited weight to be given to the fear of crime and to the consequences of the reactions (both lawful and unlawful) to the use of the Bell. The Claimant is not, however, to be criticized for seeking to address the problem which has arisen in relation to the Bell. To the extent that the fact that the Claimant did not seek an injunction in respect of the earlier use of the Bell and has not done so in respect of the other accommodation is relevant it operates in favour of the grant of relief as demonstrating that the Claimant’s approach is addressing particular circumstances.

118.

It is to be remembered that the normal method of enforcement action is by way of an enforcement notice with the use continuing until determination of its lawfulness through the enforcement process. Relief by way of a section 187B injunction is a departure from the norm and the grant of an interim injunction even more so.

119.

No one factor is determinative by itself and I have looked at matters in the round. My conclusion on this issue is that the balance of convenience falls in favour of the grant of interim relief. Notwithstanding the particular importance of the first two factors against interim relief the force of the factors in favour of it, and in particular of the first three, is such that the risk of injustice is greater if that relief were to be refused and an injunction is ultimately found to be appropriate than if the relief were to be granted and the court ultimately decides not to grant an injunction.”