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

In his judgment in South Bucks, Simon Brown LJ said that in deciding whether or not to grant an injunction, the court is bound to come to a broad view of the degree of environmental damage resulting from the breach of planning control which the local planning authority seeks to remedy. The Claimant’s own policy under paragraph 4.33 of the Plan is that a decision to resort straight to an application for an injunction will turn on whether they judge the breach of planning control to be sufficiently serious and the resulting harm to amenities to be such that immediate action is needed to secure the cessation of the offending use. That policy is consistent with the practice guidance in the PPG to which I have referred.

The starting point is that the breach of planning control upon which the Claimant relies in this case is without planning permission, the making of a material change in the use of existing hotel premises at the Bell to accommodate asylum seekers. That use is carried on within the existing buildings at the site. Prior to the installation of the security fencing in response to the protests which began on 11 July 2025, the use of the Bell to accommodate asylum seekers involved no external physical change to land or buildings which comprise the premises at the Bell.

The Bell is prominently sited on a main road on the outskirts of the town of Epping. It lies within the Metropolitan Green Belt and within a conservation area. I accept that the prominence of the site and the relatively spacious layout of the buildings contribute to the character and appearance of the conservation area. The presence of the security fencing, utilitarian in its appearance, is detrimental to the visual qualities of the Green Belt in this location and to the character and appearance of the conservation area. It is reasonable for the Claimant to attach weight to that environmental harm.

However, although the security fencing is unsightly, its visual impact is localised in its extent. It is also necessary to bear in mind that the current use of the Bell as contingency accommodation for asylum seekers is, as that phrase implies, intended to be temporary in its duration. The contract between CTM and the Defendant contemplates that current use of the Bell being brought to a close no later than April 2026. Even assuming that the security fencing is retained in situ throughout that period, it is very unlikely to be needed after the current temporary use of the Bell ceases. It is reasonable, therefore, to anticipate that within around six months’ time the appearance of the site frontage will return to that which existed until July 2025.

It is also relevant to note that the security fencing is not an integral component of the use of the Bell to accommodate asylum seekers. It has been installed in response to the street protests and on the advice of police. It was not needed during the previous use of the Bell as asylum accommodation between 2022 and 2024. Finally, it is commonplace for security fencing to be installed to provide temporary security around a wide range of buildings and sites. Planning conditions are often imposed on planning permission which require detailed approval by the planning officer of the design and detailed treatment of such fencing. There appears to have been no attempt by the Claimant as local planning authority to engage with the Defendant and Essex Police to explore possible options for ameliorating the visual impact of the security fence, if indeed a physical barrier continues to be required.

In order to form a broad view of the degree of environmental damage resulting from the current use of the Bell, it is also relevant to take account of the policy of the Claimant’s adopted development plan in relation to visitor accommodation. I have referred earlier in this judgment to Policy E4 of the Local Plan, which supports the retention and improvement of existing visitor accommodation. It was Mr Rogers’ view that the Claimant as local planning authority could reasonably regard the current use of the Bell exclusively to accommodate asylum seekers as not being in accordance with that policy.

However, the degree of planning harm which results from that lack of compliance with development plan policy would need to be carefully judged by reference to the fact that the current use of the Bell is temporary in nature; and likely to cease by April 2026. Moreover, under policy E4, the Claimant recognises that the policy objective of retaining existing visitor accommodation in the district is subject to economic pressures. One of those acknowledged economic pressures is that investment may be needed to enable a hotel to continue to operate as a viable business into the future. Here, Mr Salmon’s evidence was that the Bell requires significant financial investment to enable it to return to use as a conventional hotel. He told me that the scale of that investment was such that it was “out of reach” without the revenues and profits which the Defendant expected to realise under the contract with CTM. There is, therefore, evidence that, in the longer term, the current use of the Bell is contributing towards the practical realisation of the Claimant’s planning policy objective of retaining the Bell as visitor accommodation.

Mr Salmon’s evidence reflects a similar point put forward to the Claimant in support of the Defendant’s planning application by the Defendant’s solicitor in his letter of 14 February 2023. Accommodating asylum seekers under contract with the Home Secretary’s service providers enabled the Bell to bridge current economic circumstances and later resume “normal hotel operations”.

That issue is another example of a planning consideration which I would have expected the Claimant as local planning authority to give appropriate weight, in judging the degree of planning and environmental harm resulting from the current use of the Bell. It is, moreover, a consideration which the Defendant would itself have drawn to the Claimant’s attention, had the Claimant given the Defendant the opportunity to respond prior to instigating this application for an injunction.

In support of the application for an injunction, the Claimant asserted that asylum seekers accommodated at the Bell may have vulnerabilities which lead to pressure on local services such as GP surgeries and social services support and facilities. I accept that the ability of local health and community services to cope with the increased demand which a use of land generates is capable of being a material planning consideration.

I heard no evidence to substantiate the Claimant’s assertions that the demand for such services arising from use of the Bell as asylum accommodation was putting undue pressure on local GP surgeries, local health and social services and community facilities. Considerations of that kind were the subject of consultation and discussion following Mr Ryder’s consultative letter of 17 February 2025. I accept that in his letter of 17 March 2025 Councillor Keska raised concerns about the ability of local services to cope with the increased demand resulting from the resumption of use of the Bell as contingency accommodation for asylum seekers. However, had those concerns been realised and local health and community services experienced increased demands from asylum seekers accommodated at the Bell which they were really struggling to meet, I would have expected the Claimant to lead evidence from those service providers to explain and substantiate those difficulties. The Claimant did not do so. That being the case, I cannot accept that more than very limited weight could reasonably be given to that aspect of planning and environmental harm.

Central to the Claimant’s case on planning and environmental harm is the impact of criminal behaviour by asylum seekers occupying contingency accommodation at the Bell and the local community’s fear of crime that has been generated by that use of land. As I have said, the West Midlands case is authority for the proposition that a local community’s fear of crime may be a material consideration in development control decision making and in deciding whether enforcement action is necessary or expedient to enforce planning control.

West Midlands concerned an application for planning permission to enlarge a bail and probation hostel in a small town near Walsall. The bail hostel was located on the edge of the town, opposite a suburban housing estate. Adjacent to the site was a large nursing home. At the time of the planning application, the bail hostel had been in operation for some six years, accommodating up to 12 bailees each with a typical length of stay of around four weeks. During the day, bailees were supervised by two professional officers. There was a nighttime curfew in operation. At night, the hostel was staffed by an assistant warden and a relief supervisor.

The proposal was to extend the bail hostel so that it was able to accommodate a further eight bailees with some additional staff. The local planning authority refused planning permission. The Probation Committee appealed. The appeal was dismissed by the planning inspector.

The first main issue before the planning inspector was whether the proposed expansion of the bail hostel “would noticeably impair the living conditions that nearby residents might reasonably expect to enjoy in an area like this”. In relation to that issue, the inspector made the following findings –

The inspector drew the following conclusions –

“I consider that such occurrences give reasonable grounds for residents to feel apprehensive; and, the cumulative effect of such events could reasonably be expected to fuel a genuine ‘fear of crime’. That is recognised as a significant problem in its own right particularly if affecting the more vulnerable sections of the community, like some of the relatively elderly people here (Circular 5/94). I think that expansion of the hostel would increase the potential frequency of those occurrences and so exacerbate the ‘fear of crime’ that already exists.

…

Rowdy or raucous activity is particularly noticeable amongst the quiet drives and avenues of this neat suburban estate. It would be hard to imagine a more incongruous juxtaposition. Quite apart from the fact that there are numerous instances where the identity of an occupant is crucial to the acceptability of a planning proposal (as Circular 11/95 clearly demonstrates), a defining characteristic of using land for a ‘probation and bail hostel’ is that it may provide accommodation for probationers or a particular category of bailee. The proposed extension inevitably increases the possibility of residents encountering more bailees. I consider that local people would thus have good reason to feel more apprehensive than they do now.

…

Taking all those matters into account, I conclude that the expansion of this hostel would be likely to exacerbate the disturbance, and accentuate the fears of those living nearby, and so noticeably impair the living conditions that residents might reasonably expect to enjoy in an area like this”.

Pill LJ gave the sole substantive judgment in the Court of Appeal. He referred to three established propositions –

Rejecting the Probation Committee’s argument that local resident’s apprehension and fear were not material planning considerations to the inspector’s determination of the planning appeal, Pill LJ said –

“A significant feature of the present case is the pattern of conduct and behaviour found by the inspector to have existed over a substantial period of time. I include as part of that pattern the necessary responses of the police to events at the hostel. That behaviour is intimately connected with the use of the land as a bail and probation hostel…. The established pattern of behaviour found by the Inspector to exist, and to exist by reason of the use of the land as a bail and probation hostel, related to the character of use of the land, use as a bail and probation hostel…Given such an established pattern, I would not distinguish for present purposes the impact of the conduct upon the use of adjoining land from the impact of, for example, polluting discharges by way of smoke or fumes…. There can be no assumption that the use of the land as a bail and probation hostel will not interfere with the reasonable use of adjoining land when the evidence is that it does. Fear and concern felt by occupants of neighbouring land is as real in this case as in one involving polluting discharges and as relevant to their reasonable use of the land. The pattern of behaviour was such as could properly be said to arise from the use of the land as a bail and probation hostel and did not arise merely because of the identity of the particular occupier or of particular residents. If that is right, it is a question of planning judgement what weight should be given to the effect of the activity upon the use of the neighbouring land”.

In Smith v First Secretary of State [2005] EWCA Civ 859, Buxton LJ quoted that passage from the judgment of Pill LJ in West Midlands and said –

“9.

I respectfully draw from that guidance the conclusions that (i) fear and concern must be real, by which I would assume to be required that the fear and concern must have some reasonable basis, though falling short of requiring the feared outcome to be oved as inevitable or highly likely; and (ii) the object of that fear and concern must be the use, in planning terms, of the land. As we have seen, Pill LJ went to some trouble to demonstrate that it was the use of the land as a bail hostel, and not just the behaviour of some of the hostel's occupants, that grounded the legitimate concern: however much that behaviour was relied on to demonstrate the nature and likely effect of that use”.

Smith’s case was a challenge to a planning inspector’s decision to refuse planning permission for the use of land near a small hamlet to accommodate a caravan site for gypsies. At [10], Buxton LJ emphasised the need to distinguish carefully between the behaviour of individual occupiers and the characteristics of the use of land itself –

“10.

…it was necessary in order to take these incidents into account to attribute them not merely to the individuals concerned but also to the use of the land. But a caravan site is not like a polluting factory or bail hostel, likely of its very nature to produce difficulties for its neighbours. Granted that the evidence of recently past events attributable to the site was sparse, or on a strict view non-existent, the fear must be that the concern as to future events was or may have been based in part on the fact that the site was to be a gypsy site. It cannot be right to view land use for that purpose as inherently creating the real concern that attaches to an institution such as a bail hostel”.

In advancing its claim, the Claimant contended that due to the difficult or traumatic experiences which they have suffered, certain occupants of asylum accommodation may have a “greater propensity” to anti-social or criminal behaviour. The arrest of an asylum seeker accommodated at the Bell on 8 July 2025 on charges of sexual assault and harassment of a teenage girl was put forward as a “recent and serious incidence” of that greater propensity.

In contending for a greater propensity to anti-social or criminal behaviour, I take the Claimant to be drawing the comparison between asylum seekers and the settled population of the United Kingdom. The Claimant has not called evidence to substantiate its contentions as to the propensity of asylum seekers to commit crimes or engage in anti-social behaviour. In my judgment, in order to begin to consider whether there is any force or substance in that contention, I should need to see an evidence based and clear and statistically sound analysis of the relative incidence of criminal and anti-social behaviour amongst asylum seekers, as a defined cohort of persons, in comparison to a properly defined cohort of the settled population. There is no such evidence before the court. The fact that persons accommodated in asylum accommodation pursuant to sections 95 and 98 of the 1999 Act from time to time commit criminal offences or behave anti-socially provides no reliable basis for asserting any particular propensity of asylum seekers to engage in criminal or anti-social behaviour. Persons who are members of the settled population also commit crimes and behave anti-socially from time to time.

I accept Ms Whitbread’s evidence that there is apprehension and concern amongst members of the local community and local residents about the use of the Bell to accommodate asylum seekers. I also accept that local residents are fearful about crime. The fears and concerns of which Ms Whitbread speaks are also voiced in the comments from local residents to which Ms Thompson refers in her evidence. Applying the principled approach stated by Pill LJ in West Midlands and Buxton LJ in Smith’s case, the relevant questions are whether those fears and concerns have a reasonable basis in evidence and whether they can properly be said to be grounded in the use of the Bell as asylum accommodation, rather than the behaviour of a few of the individuals accommodated there since April 2025.

Since the resumption of use of the hotel to accommodate asylum seekers in early April 2025, three arrests have been made by the police in respect of individuals accommodated at the Bell -

In the light of these matters, I accept that there was a reasonable basis for local residents’ and the local community’s fears and concerns about crime. It appears from the evidence before me that those fears and concerns did not arise in earnest until the allegations against Mr Kebatu became public knowledge in the days immediately following his arrest on 8 July 2025. It does not appear that the arrest in early April 2025 and subsequent charge of an asylum seeker then accommodated at the Bell with offences of arson had been a significant source of public concern before the events of 8 July. Nevertheless, by early August 2025 local residents had become aware that two asylum seekers accommodated at the Bell had been charged with serious offences, including sexual assault against minors; and, shortly thereafter, local residents will have become aware of charges being levelled against a third asylum seeker for offences of violence allegedly committed at the Bell.

The second question is whether local residents’ fears and concerns may properly be said to be grounded in the use of the Bell as asylum accommodation, rather than the criminal behaviour of those three individuals accommodated there during the period since resumption of that use in early April 2025.

That question, in my view, falls to be considered by careful application of the principles and guidance given by the Court of Appeal in West Midlands and Smith’s case. In both cases, the court emphasised the need to distinguish between the actions of particular individuals and actions or behaviour which arise from the use of land itself. Pill LJ spoke of an established pattern of behaviour which related to the character of the use of the land as a bail hostel. Both Pill LJ and Buxton LJ drew an analogy between a bail hostel and a polluting factory, in the sense that the character of such uses was likely to give rise to difficulties for neighbouring occupiers. In the West Midlands case, the evidence before the inspector showed a pattern of extensive criminal and anti-social behaviour on the part of bailees accommodated at the bail hostel and associated disturbance, which reflected the character of that use of land.

In the present case, the evidence is that three individuals have either committed or been charged with committing criminal offences during the period in which they were accommodated at the Bell. I am far from convinced that the actions of those individuals disclose a pattern of criminal or anti-social behaviour which is characteristic of the use of hotels as contingency accommodation for asylum seekers. Since May 2020, the Bell has been used to provide accommodation for asylum seekers for three substantial periods of time. There is no evidence of criminal or anti-social behaviour associated with the Bell’s use for that purpose during the periods of its use between 2020-2021 and 2022-2024. More generally, there is no evidence before the court to show that the use of hotels to provide contingency accommodation for asylum seekers, including those which accommodate single adult males only, gives rise to any established or identifiable patterns of criminal or anti-social behaviour.

For these reasons, whilst the fears and concerns of local residents of which Ms Whitbread and Ms Thompson speak in their evidence have a reasonable basis in the actions or alleged actions of the three individuals accommodated at the Bell who have been convicted or charged with criminal offences since April 2025, the planning and environmental harm resulting from that factor should not be overstated. It has not been established that those fears and concerns properly relate to and are grounded in the use of the Bell as contingency accommodation for asylum seekers, rather than being the understandable reaction of local residents to the well-publicised criminal behaviour, actual and alleged, of three individuals who happen to have been accommodated there.

In advancing its claim for an injunction, the Claimant relies also upon the community tensions which are said to have resulted from the use of the Bell to accommodate asylum seekers, as reflected in the public protests which began on 11 July 2025 and continued on many days after that date. The protests are said to have had a detrimental effect both on the local community and also on the asylum seekers who are accommodated at the Bell, many of whom are said to be vulnerable or suffering from mental health issues, and on the hotel staff.

The Claimant’s case in the Court of Appeal was that it was the protests at the Bell and in the town centre during the course of July 2025 which were the “trigger” for the decision to apply for an injunction. That is entirely consistent with the sequence of events which followed the start of the protests in mid-July 2025, culminating in the resolution passed by full Council on 24 July 2025 and the Leader’s commitment to pursue every political and legal avenue to persuade the Home Secretary bring the use of the Bell as asylum accommodation to an early close.

There is no doubt that from mid-July 2025 onwards the continuing use of the Bell to accommodate asylum seekers became increasingly controversial both in the local community in Epping and indeed nationally. That controversy was highly political and attracted very considerable media coverage. There was an urgent desire for a political solution to the worsening pattern of public protest, as is evident in the debate at full Council on 24 July 2025.

Although the protests have been marred by violence and disorder on the part of some participants, I see no reason to doubt that many local people who joined the protests did so out of genuine objection to the continuing use of the Bell to accommodated asylum seekers. That being the case, it is helpful to set the protests in the context of the established principles by which local objections to controversial development are considered through the development control process.

Applications for planning permission must be publicised in accordance with the arrangements set out in article 15 of the Town and Country Planning (Development Management Procedure)(England) Order 2015. There are a range of publicity requirements, but generally the public must be given notice of the proposed development by the posting of a site notice, the notification of neighbouring occupiers and in certain cases by publication of a notice in a newspaper circulating in the locality. In all cases, notice of the planning application must be published on the local planning authority’s website.

In determining the planning application, the local planning authority must take into consideration any representations on the planning application received from neighbouring occupiers and other members of the public, whether they express objection or support for the proposed development. However, it is a long-established principle of development control that the mere fact of opposition or support for the proposed development should not carry significant weight in itself. The focus for the local planning authority will be upon the planning and environmental considerations upon which those objecting to or supporting the proposed development have founded their representations.

It is commonplace for the planning officer reporting a planning application to the local planning authority for decision, to identify the planning and environmental considerations raised in representations from neighbours and local residents, rather than place significant weight on the numbers of those voicing objection or support for the proposed development. That approach is consistent with section 70(2) of the 1990 Act, which requires that planning applications be determined having regard to the relevant policies of the development and any other material considerations. In that statutory context, a material consideration is one which serves a planning purpose, and a planning purpose is one which relates to the character of the use of land: see R(Wright) v Forest of Dean District Council [2019] UHSC 53; [2019] 1 WLR 6562 at [36].

Widespread objection to controversial forms of development may from time to time lead government to promulgate national planning policy which seeks to influence the determination of planning applications in areas in which those objections are most keenly expressed. National planning policy is a material consideration for the purposes of determining planning applications. A relatively recent example is the tightening some years ago of planning policy on the development of onshore wind farms, which was widely seen to be a policy response to strongly voiced concerns about the impact of wind turbines on local amenity in rural areas of England. In the present case, I was not shown any planning policy at national or local level which seeks to impose controls on the location of accommodation for asylum seekers.

Where a planning application gives rise to considerable local controversy, it is sometimes the case that local people who object strongly to the proposed development stage public protests at the council offices or even in the committee room in which the local planning authority’s development control committee is considering the planning application. For the reasons I have given, the mere fact of such public protests should not carry weight with the local planning authority in determining the planning application in accordance with section 70(2) of the 1990 Act. If those protesting are seeking to emphasise the planning and environmental factors arise in relation to the proposed development, the committee members should apply their minds to those factors in any event, in the proper discharge of their duty under section 70(2) of the 1990 Act.

The position is no different in the context of the enforcement of planning control. Section 172(1) of the 1990 Act empowers a local planning authority to issue an enforcement notice where it appears to them that it is “expedient to do so, having regard to the provisions of the development plan and to any other material considerations”. It is the degree of planning and environmental harm resulting from the development carried out in breach of planning control which should properly carry weight in the decision whether it is expedient to take enforcement action. If having considered the matter, the local planning authority judge that the degree of planning and environmental harm does not justify the issue of an enforcement notice, the fact that the unauthorised development has attracted heavy and vociferous public protest objecting to its continuation ought not to override that planning judgment. In such a case, the proper course may well be to invite the developer to make an application for retrospective planning permission: see the Claimant’s policy in paragraph 3.21 of the Plan.

The same principles apply when a local planning authority is considering whether it is necessary or expedient for a breach of planning control to be restrained by injunction. The proper focus of the local planning authority’s inquiry is upon the degree of planning and environmental harm resulting from the unauthorised development. If the local planning authority judge that the degree of such harm is not so serious as to require urgent remediation, the fact that the use of land under consideration has and continues to attract strong public opposition and protest should not override that planning judgment.

It is necessary to keep in mind that at this stage in the analysis, the court is seeking to form a broad understanding of the degree of environmental damage caused by the postulated breach of planning control and the degree of urgency, if any, of bringing the allegedly unauthorised use to an end. In this case, until 11 July 2025, the Bell had been used as asylum accommodation for substantial periods of time since May 2020 without any evidence of public protest at the site or elsewhere in Epping against its use for that purpose. The Bell had been so used to accommodate single male asylum seekers since early April 2025, again without any evidence of public protest at or near the site.

Although increasing public awareness of the arrest and charging of Mr Kebatu on 8 July 2025 resulted a few days later in the beginning of street protests, which subsequently escalated, arrangements for use of the Bell as contingency accommodation for asylum seekers remained essentially unchanged. The sole change in the arrangements which had been in place since early April 2025 was the installation of the security fence, on the advice of the police. That was a response to the street protests which were showing signs of violence and disorder, rather than an integral part of the day to day arrangements for use of the Bell as contingency accommodation. During the previous periods of use between 2020 to 2024, and following resumption of use in early 2025, no security fencing was installed and continuous monitoring by the police was not considered to be necessary.

The Claimant argues that the public protests are indicative of community tensions which have been generated by the use of the Bell to accommodate asylum seekers. In my view, that is essentially to acknowledge and to assert that the provision of accommodation for asylum seekers is a politically controversial and sensitive use of land. That is no doubt true, but for the reasons I have given, it does not necessarily establish that the use of land for that purpose is harmful in its planning or environmental effects. As the Court of Appeal indicated at [118] of their judgment, if the mere fact of protests is treated as material planning and environmental harm, this runs the risk of incentivising further protests, some of which may be disorderly, around asylum accommodation. Conversely, if the disruption and tensions arising from street protests directed at the continuing use of the Bell for that purpose are to be regarded as a planning or environment impact of that use, then the degree of that impact cannot be assessed without taking proper account of the means whereby that disruption and those tensions are amenable to management and control. As the Court of Appeal observed in [116] of their judgment, the fact of street protests outside a building is not an obvious matter which falls within planning control.

The system of planning control enacted by the 1990 Act is concerned primarily with the regulation of the development of land in England and Wales. It is not the purpose of the 1990 Act to regulate street protests on the public highway or in other public places. Nor is it the purpose of the 1990 Act to control and enforce public order. The police have extensive powers under public order legislation to enforce against unlawful street protests and appropriately control lawful street protests: see section 14 of the Public Order Act 1986, to which reference was made by the Court of Appeal at [119] of its judgment. As I have already noted in stating the factual background to this claim, Essex Police have exercised those powers in relation to the street protests both outside the Bell and elsewhere in Epping town centre. Moreover, the police have enforced the criminal law against violent and disorderly protestors, three of whom have now been convicted of serious public order offences and sentenced to terms of imprisonment.