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

In the light of my conclusions on the Claimant’s application for an injunction, I turn finally to the application for declaratory relief. The declaration sought is that the current use of the Bell does not amount to use as a hotel within the meaning of Use Class C1. In submissions, the Claimant advanced the following case for the grant of declaratory relief –

“Regardless of whether this Court grants a final injunction or not (e.g. because it concludes that, despite a breach of planning control, in the exercise of its discretion it would not in all the circumstances be proportionate and just to do so), if the Court considers that it will serve a useful purpose, it should make a declaration on the antecedent requirements (i.e. is the current use of the Bell Hotel ‘use as a hotel’? If ‘no’, does this represent a material change in the use of the Bell Hotel? Did [the Claimant] properly conclude that it was necessary and expedient for the breach of planning control to be restrained by an injunction?)”.

I accept that this court is well equipped to decide a question of fact and degree. There is, however, the different and logically prior question as to whether the court ought to do so. That question turns on the legislative context in which it arises. In South Bucks at [30] Lord Bingham said that an application by a local planning authority under section 187B of the 1990 Act is not an invitation to the court to exercise functions allocated elsewhere under the comprehensive code of the 1990 Act. The statutory procedures under sections 191 and 195 of the 1990 provide for the local planning authority, or on appeal the Secretary of State, to determine conclusively whether an existing use of land is lawful because it does not involve development. An appeal against the issue of an enforcement notice alleging the making of a material change in the use of land provides a statutory procedure under which the question whether the matters stated in the enforcement notice constitute a breach of planning control may be determined. The Secretary of State’s (or their appointed inspector’s) decision on those matters is in each case final. The role of this court is limited to hearing a challenge to the validity of that decision.

Given the allocation of those functions to local planning authorities and the availability of statutory appeals against their decisions on those questions, 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, following the guidance given by Lord Bingham at [27] in South Bucks.

For those reasons, I decline to grant the declaratory relief sought by the Claimant.