KB-2025-002908 - [2025] EWHC 2937 (KB)

In none of the three cases considered by the House of Lords in South Bucks was there any dispute as to the existence of an actual breach of planning control. In each of those cases, the respondents had stationed caravans and mobile homes on rural land for residential use without the required planning permission having first been obtained. Those facts explained Simon Brown LJ’s observation in [38] of his judgment in the Court of Appeal that the breach of planning control was a “given” when this court came to exercise its discretion whether to grant the injunction applied for in those cases.

By contrast, in the present case there is a long-standing dispute between the Claimant as local planning authority and the Defendant as to whether the use of the Bell to accommodate asylum seekers does constitute a breach of planning control. Given the Bell has been used for that purpose for periods of approximately one year between early 2020 and 2021, and of approximately 18 months between October 2022 and April 2024, and that its current use as contingency accommodation for asylum seekers resumed in early April 2025, that dispute plainly relates to an alleged actual breach of planning control.

The nature of that dispute is clear. It has been the consistent position of the local planning authority since November 2022, as stated by Mr Stubbs, the Claimant’s Planning Enforcement and Compliance Manager, that the use of the Bell has changed from its former use as a hotel to use as a hostel for the purpose of accommodating asylum seekers. Whereas the Defendant has been equally consistent in stating its position that in accommodating asylum seekers between March 2020 and early 2021, between November 2022 and April 2024, and now since early April 2025, the Bell remains in use as a hotel.

Through Mr Stubbs’ correspondence, the local planning authority has also made clear its position, that it considers the change in the use of the Bell from use as a hotel to use as a hostel to be a material change for planning purposes, which requires planning permission. In short, the Defendant can have been in no doubt from Mr Stubbs’ correspondence in November 2022 and later in April 2025 that the local planning authority considered the use of the Bell as accommodation for asylum seekers constituted a breach of planning control.

Conversely, given the correspondence between the Defendant’s solicitor, Mr Salmon and Mr Stubbs to which I have referred, the Claimant as local planning authority could have been in no doubt that the Defendant disagreed with the authority’s view that the use of the Bell to accommodate asylum seekers constituted a breach of planning control. The Defendant’s planning application was submitted in February 2023 expressly without prejudice to its asserted position that the use of the Bell temporarily to accommodate asylum seekers did not constitute a material change in its use. Having initially stated its intention in late April 2025 to make a further application for planning permission to use the Bell for that purpose, on 15 May 2025 the Defendant through Mr Salmon made it clear to the local planning authority that no such application would be made. Mr Salmon explained the Defendant’s decision not to make a planning application on the basis that the Bell was contracted to provide accommodation to asylum seekers as an exclusive use hotel, not as a hostel.

Having heard Mr Stubbs’ evidence, I was left in no doubt that that he had well understood that as matters stood in mid-May 2025, there was a dispute between the Claimant as local planning authority and the Defendant as to whether the then current use of the Bell to accommodate asylum seekers required planning permission; in other words, whether the use of the Bell for that purpose was in breach of planning control.

In short, it is clear that following resumption in early April 2025 of the use of the Bell as accommodation for asylum seekers, there was an unresolved dispute between the Claimant as local planning authority and the Defendant as landowner, as to whether the Bell was being used in breach of planning control. The basis for the Claimant’s view that it was being so used was founded on the judgment that the use of the Bell had changed from use as a hotel to use as a hostel to accommodate asylum seekers, a change in its use that was material for planning purposes.

It is sometimes straightforward for a local planning authority to determine that a breach of planning control has taken place. If a person carries out building operations to build a new dwelling on open land in the countryside without having obtained the required planning permission, there is a clear breach of planning control. If a person changes the use of an agricultural field in the countryside by stationing a mobile home on that land and using it as their home, without having obtained the required planning permission, there is a clear breach of planning control. In both of those examples, the works and activities described are correctly to be characterised as an actual breach of planning control. If in the second example, the local planning authority receive information on a Thursday that the person is making arrangements to bring the mobile home onto the field over the coming weekend, the authority are in a position to apprehend or, as Simon Brown LJ put it in his judgment in South Bucks, to “anticipate” a breach of planning control.

In many other cases, however, the question whether there has been a change in the use of a building or land, and whether that change is material for planning purposes, is more difficult to judge. As was established as long ago as the East Barnet case in 1961, the determination of the question whether a breach of planning control has taken place in such circumstances, or is in prospect, is a matter of fact and degree. However, that does not necessarily make the task of deciding whether a breach of planning control has occurred or is in prospect any more straightforward to judge for the local planning authority.

This case illustrates the difficulty which a local planning authority often faces in determining whether changes in the activities carried out on land have resulted in a change in the use of that land which is material for planning purposes. Here, it is beyond dispute that the lawful use of the Bell in the many years leading up to early 2020 was as a hotel. Moreover, it is beyond dispute that any change in the activities carried on at the Bell thereafter would not give rise to a breach of planning control, provided that the Bell nevertheless retained the character of a hotel, a boarding house or a guesthouse. That is clear beyond argument, since by virtue of section 55(2)(f) of the 1990 Act and article 3(1A) and Class 1 of schedule 1 to the UCO, any such activities would not to be taken to involve development. (Neither the Claimant nor the Defendant has suggested that the Bell is being used as a boarding house or a guest house. It was not the Claimant’s case before me that the current use of the Bell involves any significant element of care within the meaning of article 2 of the UCO.)

In Westminster City Council v Secretary of State for Communities and Local Government [2015] EWCA Civ 482; [2015] JPL 1276 at [5], the Court of Appeal characterised the distinction between a hotel use and hostel use as “a fine one”. In Ipswich at [72]-[83], Holgate J analysed in detail the case law on what may be considered a hotel or a hostel. His note of caution in introducing that analysis merits quotation –

“72.

It is important to appreciate that the case law on what may be considered to be a hotel or a hostel as providing guidance on relevant considerations in determining what is ultimately a question of fact. The criteria set out in the cases are not to be treated as prescriptive or conclusive (see e.g. the Westminster case [2015] JPL 1276 at [30]). Neither word is to be regarded as a term of art. It should also be borne in mind that in the cases cited the court was carrying out a legal review of a decision made by a decision-maker responsible for finding the facts”.

It is unnecessary for me to attempt my own exposition of the relevant case law, since I am able to set out Holgate J’s authoritative analysis in [73]-[79] of his judgment in Ipswich –

“73.

So, in Mayflower Cambridge Limited v Secretary of State for the Environment (1975) 30 P&CR 28 it was stated that, in contrast to bed-sitting rooms, the essence of a hotel is that it takes transient guests, or people for short stays. But in Commercial and Residential Property Development Company Limited v Secretary of State for the Environment (1981) 80 LGR 443 Glidewell J (as he then was) accepted that a hotel may lawfully be occupied by permanent residents, that is people who do not have a home elsewhere (p. 447).

74.

In Commercial and Residential the court also held that a hostel is a building where people either live or stay and which provides communal facilities. The word “hostel” is not a term of art in relation to duration of stay. It can include not only youth hostels for transient occupation but also long-term accommodation as in the case of a nurse’s hostel. The sleeping accommodation is often, but by no means always, in the form of dormitories rather than single rooms and provides shared working, eating and recreational facilities. It is of the essence of a hostel that it provides relatively basic, inexpensive accommodation.

75.

Plainly there is a spectrum of hostel uses. Glidewell J said that a nurses’ hostel in which the occupants live, rather than stay, shares many of the characteristics of permanent housing. On the other hand, a hostel used as transient accommodation has many of the characteristics of a hotel: people coming and going, people booking in and checking out, people who stay in the hostel but live elsewhere.

76.

In Panayi v Secretary of State for the Environment (1985) 50 P&CR 109 Kennedy J held that an Inspector had made no error of law in deciding that a change from four self-contained flats to a hostel used for homeless families involved a material change of use. The Inspector had been entitled to rely upon (i) the use of the premises to accommodate homeless families referred by a local authority, (ii) the premises were supervised and serviced, (iii) payment was made for the facility by the local authority on a nightly basis, and (iv) each family’s stay was transient. Those factors had been judged by the tribunal of fact to be significant in the context of a change from self-contained flats. They were not characteristics of a use as a dwelling. As the Court of Appeal pointed out in the Westminster case, they are not a definitive checklist ([30]).

77.

The Westminster case concerned a challenge to an Inspector’s decision in an enforcement notice appeal, where the notice had alleged a change from a hotel to a mixed use as a hotel and hostel. The challenge succeeded in the Court of Appeal on two grounds. First, the Inspector failed to apply the correct legal approach for determining whether a planning unit has a mixed use. Second, she failed to have regard to the off-site effects of the actual use of the property, in particular the effects upon residential amenity.

78.

The Court of Appeal stated that “the distinction between hotel use and hostel use is a fine one” ([5]). The Inspector had said the same, pointing out that many of the features of the operation could be found in a hotel as well as a hostel ([23]). Plainly the issue is fact sensitive.

79.

The Court of Appeal also stated that if the Inspector had not made an error with regard to the legal nature of a mixed use, it would have been difficult to see how she could reasonably have reached any conclusion other than that there was a mixed hotel and hostel use ([30]). That was on the basis of the Inspector’s findings that:-

i)

a number of rooms were in use as dormitories (with bunk beds for 4, 6 or 8 people) with shared bathroom facilities and there were communal cooking and laundry facilities;

ii)

the hotel was used by a specific category of people, young people travelling in groups;

iii)

The occupants had to perform some tasks which would normally be carried out by hotel staff as part of the services provided. In addition, the premises had to be supervised to address noise and disturbance caused to neighbours by the occupants”.

Ipswich concerned applications for interim injunctions made to this court by two local planning authorities, in the context of claims brought under section 187B of the 1990 Act in respect of the proposed use of hotels in Ipswich and North Ferriby to accommodate asylum seekers. It was necessary for Holgate J to address the question whether in each case the local planning authority had raised a triable issue that the proposed use would involve an unauthorised change in the use of those hotels which was material and thus a breach of planning control. As to whether the evidence pointed to a change of use, Holgate J said at [101] –

“101.

The starting point is that the distinction between hotel and hostel use in a case of the present kind is fine. There are some factors pointing against a hostel use. The proposed use involves no alteration of the premises. In many ways the operation of the Novotel would be similar to that carried out ordinarily by the hotel operators. There would be no dormitories and the accommodation could not be described as basic or inexpensive. On the other hand there are factors pointing to a hostel use. The premises would be block-booked for a substantial period of time solely for occupation by people belonging to one cohort, asylum seekers, having nowhere else to live. The duration of their transient occupation would be determined by their move to the next stage of the asylum process. The accommodation would be paid for ultimately by the Home Office. It is arguable that the factors pointing towards a hostel use outweigh those pointing against”.

As to whether that change of use would be material, he said at [102]-[104] –

“102.

The effect of the block-booking of the whole hotel is that no accommodation is available for any member of the public. It is said that the Novotel is the largest hotel in the centre of Ipswich and that the loss of the accommodation would be damaging to the hospitality and leisure economy of the town, given its close proximity to restaurants and bars. It is arguable that this alleged harm is a planning consideration which may render a change to a hostel a material change of use and so attract planning control.

103.

In these circumstances [Ipswich Borough Council] has raised a triable issue in relation to the apprehended breach of planning control”.

104.

Given the stance taken by the defendants in the [East Riding of Yorkshire Council] case, I deal with this issue more briefly. Although there are some differences in the evidence compared to the IBC case, for similar reasons there is a triable issue as to whether the use of the hotel would change to a hostel. The planning harm relied upon by ERYC is different (impact of the loss of the hotel accommodation on a key employment site and for tourism purposes and highway safety concerns). In my judgment it is arguable that this alleged harm is a planning consideration which may render a change to a hostel use a material change of use”.

I heard evidence from both Mr Salmon and Ms Hutchinson-Chambers describing the contractual arrangements between CTM and the Defendant under which the Bell is currently used to provide contingency accommodation for asylum seekers. They also described the day-to-day operation of that accommodation at the Bell, including staffing arrangements, catering arrangements and the use of the building’s facilities. Ms Hutchinson-Chambers told me that newly arriving asylum seekers at the Bell receive an induction to the hotel, including a welcome pack, and sign an occupancy agreement. They are each required to be registered with one of two local GP surgeries within 72 hours of arrival at the Bell. Upon arrival they each go through an initial health assessment. Catering services are provided by a sub-contractor of CTM, who also provide security services. Laundry and cleaning services are provided by the Defendant’s staff. Also present at the Bell are the Defendant’s hotel manager, their deputy, up to three housekeeping staff and reception staff. CTM and the Home Office consulted with Essex Police and adult social services prior to the resumption of use of the Bell as contingency accommodation in early April 2025 and continue to do so on a regular basis.

The Court of Appeal summarised the current use and activities at the Bell since the Bell reopened in early April 2025 and resumed its use to accommodate asylum seekers, all of whom have been single males, pursuant to the contract between the CTM and the Defendant, as follows –

“18.

CTM is a registered Home Office service provider of accommodation for asylum seekers under the 1999 Act. By a contract dated 24 March 2025, for an initial term of 12 months ending on 24 March 2026, the Defendant has agreed to provide CTM with exclusive use of the Bell for the contractual period for the purpose of short-term accommodation for asylum seekers. In its capacity as service provider, CTM provides all services connected with the welfare of asylum seekers and their social, mental and medical care. It handles all movement of residents to and from premises and has complete control over who is placed in the Bell, the duration of their stay and all matters relating to their occupancy. Through a subcontractor, it provides premises, security and the catering of all meals. The Defendant provides cleaning, general facility maintenance, and hotel laundry; it facilitates personal laundry through an offsite service provider.

19.

Those accommodated in the Hotel have no choice of room nor of the person with whom they share. They do not pay Somani; payment is made to Somani through the contract with CTM. The residents of the Hotel are free to "come and go" but if an individual wishes to be away for more than one day they must obtain authorisation from the Home Office. Somani is required to obtain a signature from each resident each day and to notify CTM and the Home Office if any resident is not seen for more than one day.

19.

There have been no changes to the internal structure of the Hotel since it commenced accommodating asylum seekers and the only external change has been the erection of security fencing in July 2025 by Somani which was a response to the protests which were taking place outside the Hotel”.

Although I had the benefit of a rather more detailed description of those arrangements in evidence before me, the principal components of the current use of the Bell as contingency accommodation for asylum seekers remain as stated in that quoted passage.

The decision to apply to the court for an injunction pursuant to section 187B of the 1990 Act was taken by the Claimant’s Legal Services Manager under delegated powers on 5 August 2025. She did not make a contemporary note of her reasons for concluding that the use of the Bell to accommodate asylum seekers constituted a material change of use from its former use as a hotel. In her witness statement signed on 29 September 2025, she stated that having reviewed leading counsel’s advice on 4 August 2025, it had seemed clear to her based upon the facts on the ground that the use of the Bell exclusively for the purpose of accommodating asylum seekers was a change in its use. She described that change of use as being from a hotel, which had been open to reservation by members of the public wishing to stay in Epping, with a bar and restaurant open to all, including for functions such as weddings, to a use in which all of those qualities were absent; with the result that the relationship between the Bell hotel and those living and working in the area had become a “different, disengaged” one. It seemed clear to her that “having regard to the location of the Bell Hotel, its locality, its previous connection with the local community and so forth”, this was a material change of use.

The Legal Services Manager did not say that she had consulted with her colleagues in the Claimant’s planning department to seek their view on whether there had been a change of use and, if so, whether that change was material. No doubt had she done so, she would have been made aware by Mr Stubbs that the planning officers’ view was that the current use of the Bell did involve a material change in its use and required planning permission. She would also, however, have been told that the Defendant who owned the Bell disputed the need for planning permission, on the basis that the current use was exclusively as a hotel and not as a hostel.

I was reminded by Mr Coppel KC that the advice provided by leading counsel to the Claimant was legally privileged and that no inferences or assumptions should be made as to its contents. I of course accept that submission. Nevertheless, the questions whether a change of use of land has taken place, and whether that change is material for planning purposes, are questions of fact and degree and not of law. I would expect the decision maker faced with such questions to express their decision and the reasons for that decision in terms which broadly reflect the legal framework within which the decision was taken.

I have referred to the case law discussed by Holgate J in Ipswich and to the acknowledged fine distinction between the use of land as a hotel and as a hostel. In his judgment at [101]-[104], Holgate J identified characteristics of the proposed use of hotels in that case to accommodate asylum seekers which pointed against and towards a hostel rather than a hotel use. Most if not all of those factors are present in the present case, and were known to the Claimant as a result of the consultation, engagement and correspondence with the Home Office, CTM and the Defendant before and after April 2025. I was told the Legal Service Manager based her judgment on the “facts on the ground”. I was not provided with any detailed account or record, contemporary or otherwise, to explain what she knew or had been informed about the arrangements for the current use of the hotel.

Given the planning officer’s view when the current use of the Bell resumed in April 2025 that there had been a change of use to use as hostel, the acknowledged fine distinction between a hotel and a hostel use, and the Defendant’s position that the Bell remained in use as a hotel, I would have expected the factors which pointed against and to a material change of use to be clearly identified and considered by the Legal Services Manager as delegated decision maker.

In the absence of a contemporary record of her reasons prepared on 5 August 2025, the explanation which the Legal Services Manager gave in evidence for her “clear” view that there had been a material change in the use of the Bell was very brief indeed. It focused essentially only on the loss of the visitor accommodation, restaurant and function room to serve the local community. Policy E4 of the Epping Forest District Local Plan 2011-2033 supports “the retention and improvement of existing visitor accommodation and venues unless there is proof that there is no market interest in rental or acquisition and that investment to allow continued profitable operation of the business is not viable”. I would have expected consideration of that policy in the context of a judgment whether the change of use actually identified by the Legal Service Manager was material. There was no such consideration, on the evidence before the court.

For these reasons, I am left in considerable doubt as to whether the Legal Services Manager’s delegated decision was founded upon a properly informed and considered judgment that the use of the Bell as contingency accommodation for asylum seekers constituted a breach of planning control. In the absence of a proper record of her delegated decision and in the light of the very brief explanation which she gave in evidence, I am not confident that the clear view which she felt able to reach was properly justified.

Nevertheless, I am conscious of the need not to trespass too far into the forbidden territory of planning judgment. In his evidence to the court, Mr Stubbs supported the judgment that the current use of the Bell to accommodate asylum seekers differs materially from its former use as a hotel in a number of respects. Amongst the matters which Mr Stubbs relies upon in support of his view are that the Bell is currently occupied solely by a specific category of persons, namely asylum seekers. Occupiers live at the Bell for an indeterminate period of time which is governed by the progress of their asylum claim and beyond their control. The Bell is the asylum seekers’ only home during that period of time. Their accommodation is block booked and paid for ultimately by the Home Office. The Bell is no longer available for use as a hotel by members of the public. Access to and from the premises is strictly controlled.

There are obvious parallels between Mr Stubbs’ analysis and the factors which were identified by Holgate J as pointing at least arguably to a material change in the use of the two hotels which were the subject matter of the Ipswich case. Mr Stubbs is an experienced and senior planning officer and his judgment should carry weight. He has been clear and consistent in his view since October 2022 that the use of the Bell exclusively as accommodation for asylum seekers is development requiring planning permission. In the light of his evidence, and notwithstanding my reservations as to the reliability of the clear view formed by the Legal Services Manager in support of her delegated decision taken on 5 August 2025, I am prepared to accept that the Claimant as 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. I should add that I did not find the aspects of the rating history of the Bell to which my attention was drawn to be of any assistance.