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

Development - Material change of use

Planning permission is required for the carrying out of any development of land: section 57(1) of the 1990 Act.

Section 55(1) of the 1990 Act defines development. There are two limbs, operational development and material changes in the use of buildings or land –

“55(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land”.

Section 55(2) identifies certain operations or uses of land which are not to be taken to involve development of the land. Insofar as relevant for present purposes, they include –

“(f)in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class”.

Article 3(1A) of the Town and Country Planning (Use Classes) Order 1987 [“the UCO”] provides –

“(1A) Subject to the provisions of this Order, where a building or other land is situated in England and is used for a purpose of any class specified in—

(a)

Part B or C of Schedule 1, or

(b)

Schedule 2,

the use of that building or that other land, or if specified, the use of part of that building or the other land (“part use”), for any other purpose of the same class is not to be taken to involve development of the land”.

Class C1 of schedule 1 to the UCO specifies –

“Class C1. Hotels

Use as a hotel or as a boarding or guest house where, in each case, no significant element of care is provided”.

Article 3(6) of the UCP provides –

“No class specified in Schedule 1 or 2 includes use –

…(i) as a hostel”.

Neither “hotel” nor “hostel” is defined in the 1990 Act or the UCO.

Whether there has been a change made in the use of a building or land and, if so, whether that change in its use is material, are questions of fact and degree. Those questions are to be answered on the basis of the evidence in the given case. See East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484, 492.

In considering whether there has been a material change in the use of a building or land, what is to be considered is the character of the use of the building or land, rather than the particular purpose of a particular occupier: see Westminster City Council v Great Portland Estates plc [1985] 1 AC 661, 669H. It is relevant to consider both the on-site and off-site effects of the character of the use of land: see Hertfordshire County Council v Secretary of State for Communities and Local Government [2012] EWCA Civ 1473; [2013] JPL 560 at [25] –

“In assessing whether there is a change of character in the use, its impact of the use on other premises is a relevant factor. It is necessary, on the particular facts, to consider both what is happening on the land and its impact off the land when deciding whether the character of the use has changed”.

The effect of section 55(2)(f) of the 1990 Act is that certain changes of use as specified in the UCO are not to be treated as development for the purposes of the 1990 Act. The intended purpose of the UCO is to “put outside the ambit of” the 1990 Act a change of use that has taken place within the same specified use class: see Rann v Secretary of State for the Environment (1979) 40 P&CR 113, 117. It does not follow that a change in the use of a building falling within a specified use class to a use which falls outside the scope of that use class is necessarily material. To illustrate that point, in Ipswich Borough Council v Fairview Hotels (Ipswich) Limited [2022] EWHC 2868 (KB); [2023] JPL 630 [“Ipswich”] at [71] Holgate J said –

“Where the use of land changes from a hotel to a hostel, the only effect of the UCO is that that change is not excluded from development control. The UCO cannot be used to treat that change as representing in itself a material change in the use of the land. Whether that is so will depend on a case-specific assessment of the effect of the change on the character of the use of the land, in other words, the planning consequences of the change”.

There have been a number of cases in which the court has offered guidance on matters that may be considered to be relevant to the question whether, in the circumstances of a given case, a building is being used as a hotel or a hostel, or some other kind of residential accommodation. I shall return to that line of cases later in this judgment.

Primary responsibility for enforcing planning control lies with local planning authorities. Part 7 of the 1990 Act provides a range of powers whose general purpose is to enable a local planning authority to take such enforcement actions as they consider to be necessary and appropriate to remedy a breach of planning control.

Section 171A(1) of the 1990 Act explains what is meant in this statutory context by a breach of planning control –

“(1)

For the purposes of this Act, -

(a)

carrying out development without the required planning permission; or

(b)

failing to comply with any condition or limitation subject to which planning permission has been granted,

constitutes a breach of planning control”.

The normal method of taking enforcement action against a breach of planning control consisting of carrying out development without the required planning permission, is the issue by the local planning authority of an enforcement notice pursuant to section 172 of the 1990 Act –

“The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them -

(a)

that there has been a breach of planning control; and

(b)

that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations”.

As is clear from the terms of section 172(1), even in a case in which it appears to a local planning authority that a building or land is being used in breach of planning control, they may nevertheless judge it not to be expedient to take enforcement action, having considered the relevant policies of the development plan and any other material consideration which bear upon that judgment.

In any case where a local planning authority does issue an enforcement notice, they are required to serve the notice on the owner of the land to which it relates, on the occupier and other person having an interest in the land which, in the authority’s opinion, is materially affected by the notice: section 172(2) of the 1990 Act.

The contents of an enforcement notice are prescribed by section 173 of the 1990 Act as supplemented by regulation 4 of the Town and Country Planning (Enforcement Notices and Appeals) (England) Regulations 2002. The notice must state the matters which appear to the local planning authority to constitute the breach of planning control. The notice must specify the steps required to be taken or the activities required to cease, in order to achieve (wholly or in part) the purposes stated in section 173(4) –

“Those purposes are -

(a)

remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or

(b)

remedying any injury to amenity which has been caused by the breach”.

Section 173(4) states that an enforcement notice may require the alteration or removal of any buildings or works; or that any activity on land not be carried out except to the extent specified in the enforcement notice. The notice must state when it will take effect. It must also state the period for compliance with its requirements.

Regulation 4 of the 2002 Regulations requires the local planning authority to specify the reasons why they consider it expedient to issue the enforcement notice; and all policies and proposals in the development plan which are relevant to their decision to issue the notice.

Section 174 of the 1990 Act confers a right of appeal to the Secretary of State against an enforcement notice. The right of appeal is enjoyed by any person having an interest in the land to which the notice relates; and any licensee in occupation of the land. The grounds on which an appeal may be brought are specified in section 174(2) of the 1990 Act. They include –

“(a)

that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b)

that those matters have not occurred;

(c)

that those matters (if they occurred) do not constitute a breach of planning control;

(f)

that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g)

that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed”.

By virtue of section 175(4) of the 1990 Act, where an appeal is brought against an enforcement notice, the notice is of no effect pending final determination or withdrawal of the appeal.

The majority of appeals against enforcement notices are determined by planning inspectors appointed by the Secretary of State. The Secretary of State may recover such an appeal for his or her own determination. Many enforcement appeals are determined on the basis of written representations. However, should the appellant or the local planning authority so desire, the Secretary of State must give each of them the opportunity of appearing before and being heard by the appointed inspector: section 175(3) of the 1990 Act. The hearing may in appropriate cases take the form of a local inquiry. Whatever the choice of procedure, it is governed by procedure rules which provide for representations from third parties and, in the case of hearings and local inquiries, for publicity to be given of the proceedings.

Section 177 of the 1990 Act empowers the Secretary of State to grant planning permission and issue certificates when determining an appeal against an enforcement notice –

“On the determination of an appeal under section 174, the Secretary of State may -

(a)

grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters or in relation to the whole or any part of the land to which the notice relates;

…

(c)

determine whether, on the date on which the appeal was made, any existing use of the land was lawful, any operations which had been carried out in, on, over or under the land were lawful or any matter constituting a failure to comply with any condition or limitation subject to which planning permission was granted was lawful and, if so, issue a certificate under section 191.

…

(1C) Subsection (1)(a) applies only if the statement under section 174(4) specifies the ground mentioned in section 174(2)(a).

…

(2)

In considering whether to grant planning permission under subsection (1), the Secretary of State shall have regard to the provisions of the development plan, so far as material to the subject matter of the enforcement notice, and to any other material considerations.

…

(5)

Where—

(a)

an appeal against an enforcement notice is brought under section 174, and

(b)

the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),

the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control”.

Section 177(7) states that in relation to a grant of planning permission or a determination under section 177(1), the Secretary of State’s decision shall be final. The validity of such a decision may be challenged by way of an application to this court made in accordance with section 288 of the 1990 Act. An appeal from the decision of the Secretary of State on an enforcement notice appeal may be made to this court on a point of law, in accordance with section 289 of the 1990 Act.

Where a local planning authority considers it expedient that any activity specified in an enforcement notice should cease before the expiry of the period for compliance with that notice, they may serve a stop notice prohibiting the carrying out of that activity, pursuant to section 183 of the 1990 Act. A stop notice may be served at the same time as the enforcement notice or thereafter, However, a stop notice may not prohibit the carrying out of any activity if that activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the stop notice: section 183(5) of the 1990 Act.

Section 171E of the 1990 Act confers power on a local planning authority to issue a temporary stop notice. That power arises in a case where the authority thinks that there has been a breach of planning control in relation to any land; and that it is expedient that the activity which amounts to the breach is stopped immediately: see section 171E(1) of the 1990 Act. Exercise of the power is not dependent upon the prior issue of an enforcement notice. A temporary stop notice must specify the activity which the authority think constitutes a breach of planning control, prohibit the carrying on of that activity and set out the authority’s reasons for issuing the notice. The notice takes effect immediately, but may not continue in effect beyond a period of 56 days. As with a stop notice issued in conjunction with an enforcement notice under section 183 of the 1990 Act, a temporary stop notice does not prohibit the carrying out of any activity if that activity has been carried out (whether continuously or not) for a period of more than four years ending with the service of the stop notice: section 171F(2) of the 1990 Act.

Where it appears to a local planning authority that there may have been a breach of planning control in respect of any land, they may serve a planning contravention notice [“PCN”] under section 171C of the 1990 Act. The authority may serve a PCN on any person who owns or occupies the land, or is carrying out operations on the land or using the land for any purpose. A PCN may require the person served to give information specified therein as to –

By virtue of section 171C(4) of the 1990 Act –

“(4)

A [PCN] may give notice of a time and place at which –

(a)

any offer which the person on whom the notice is served may wish to make to apply for planning permission, to refrain from carrying out any operations or activities or to undertake remedial works; and

(b)

any representations which he may wish to make about the notice,

will be considered by the authority, and the authority shall give him an opportunity to make in person any such offer or representations at that time and place”.

Failure to comply with the requirements of a stop notice, a temporary stop notice and a PCN are criminal offences punishable by a fine: see sections 187, 171G and 171D of the 1990 Act.

Part 3 of the 1990 Act empowers a local planning authority to grant planning permission on a retrospective basis. Section 73A(1) of the 1990 provides –

“(1)

On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application”.

That power applies to development carried out without planning permission, that is to say, in breach of planning control. Planning permission may be granted for such development so as to have effect from the date on which the development was carried out: see section 73A(2) and (3) of the 1990 Act.

Section 191 of the 1990 Act enacts a certification procedure under which the lawfulness of an existing use of land or buildings may be conclusively established. Sections 191(1), (2), (4) and (6) provide –

“(1)

If any person wishes to ascertain whether—

(a)

any existing use of buildings or other land is lawful;

(b)

any operations which have been carried out in, on, over or under land are lawful; or

(c)

any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2)

For the purposes of this Act uses and operations are lawful at any time if—

(a)

no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b)

they do not constitute a contravention of any of the requirements of any enforcement notice then in force

…

(4)

If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

…

(6)

The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed”.

Section 195 of the 1990 Act provides a right of appeal to the Secretary of State against the refusal of an application for a certificate under section 191. The Secretary of State’s decision on such an appeal is final: section 196(3). The validity of that decision may be challenged only by way of an application to this court pursuant to section 288 of the 1990 Act.

Section 187B of the 1990 Act 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.

(3)

Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4)

In this section “the court” means the High Court or the county court”.

Section 37(1) of the Senior Courts Act 1981 provides –

“The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so”.

(4)

The South Bucks case

The principles which are to be followed by the court in exercising the power conferred by section 187B of the 1990 Act are stated in South Bucks District Council v Porter [2003] 2 AC 558 [“South Bucks”]. In that case, the House of Lords determined appeals brought by gypsies against the grant by this court of injunctions under section 187B restraining them from using land for the stationing of caravans for residential occupation. It was not in dispute that the activities restrained by the injunctions were being carried on in breach of planning control. The gypsies had succeeded on appeal before the Court of Appeal. The local planning authorities’ appeals to the House of Lords were dismissed.

In [11]-[12] of his speech, Lord Bingham analysed the statutory framework for the control of development and the enforcement of planning control enacted in parts 3 and 7 of the 1990 Act. In [13]-[16] he summarised the background to the enactment of the power to grant an injunction to restrain an actual or apprehended breach of planning control, which was inserted as section 187B of the 1990 Act by section 3 of the Planning and Compensation Act 1991. In particular, he referred to the report by Mr Robert Carnwath QC entitled “Enforcing Planning Control” (1989) in which Mr Carnwath had recommended that a local planning authority should be able to apply for an injunction in respect of any breach or threatened breach of planning control, whether or not an enforcement notice or stop notice has been served. Mr Carnwath said that there were likely to be two sets of circumstances where such a power would be especially useful. Firstly, it could provide an urgent remedy in cases where there was a threatened or actual breach of planning control which presented a serious threat to amenity, whose timely and effective enforcement was otherwise problematic under the enforcement and stop notice regimes. Secondly, it could provide a stronger back-up power in cases where the existing remedies had proved or were likely to prove inadequate. Nevertheless, it would be a mistake to attempt to prescribe too closely the circumstances in which the remedy would be available. Recent experience suggested that the merit of the remedy was its flexibility and its ability to evolve to meet changing needs.

In his speech at [20], Lord Bingham quoted Simon Brown LJ’s analysis of the approach to section 187B of the 1990 Act in [38]-[42] of his judgment in the Court of Appeal. Those of particular relevance to the present case are –

At [38] in his speech, Lord Bingham said that the guidance given by the Court of Appeal in those paragraphs of Simon Brown LJ’s judgment was “judicious and accurate in all essential respects” and he would endorse it.

In South Bucks at [27], Lord Bingham said that the jurisdiction of this court under section 187B of the 1990 Act is original. It is not supervisory. It is nevertheless open to the defendant in resisting the local planning authority’s claim to seek to impugn the validity of the decision to apply for an injunction on public law grounds –

“27.

The jurisdiction of the court under section 187B is an original, not a supervisory, jurisdiction. The supervisory jurisdiction of the court is invoked when a party asks it to review an exercise of public power. A local planning authority seeking an injunction to restrain an actual or apprehended breach of planning control does nothing of the kind. Like other applicants for injunctive relief it asks the court to exercise its power to grant such relief. It is of course open to the defendant, in resisting the grant of an injunction, to seek to impugn the local authority’s decision to apply for an injunction on any of the conventional grounds which may be relied on to found an application for judicial review. As Carnwath J observed in R v Basildon District Council, Ex p Clarke [1996] JPL 866, 869:

“If something had gone seriously wrong with the procedure, whether in the situation of the injunction proceedings or in any other way, it was difficult to see why the county court judge could not properly take it into account in the exercise of his discretion to grant or refuse the injunction”

But a defendant seeking to resist the grant of an injunction is not restricted to reliance on grounds which would found an application for judicial review”.

At [28], Lord Bingham said that the power of this court to grant an injunction under section 187B is discretionary, as is the case with any application to the court for the remedy of an injunction, as is made clear by section 37 of the Senior Courts Act 1981 –

“28.

The court’s power to grant an injunction under section 187B is a discretionary power. The permissive “may” in subsection (2) applies not only to the terms of any injunction the court may grant but also to the decision whether it should grant any injunction. It is indeed inherent in the concept of an injunction in English law that it is a remedy that the court may but need not grant, depending on its judgment of all the circumstances. Underpinning the Court’s jurisdiction to grant an injunction is section 37(1) of Supreme Court Act 1981, conferring power to do so “in all cases in which it appears to the Court to be just and convenient to do so”. Thus the Court is not obliged to grant an injunction because a local authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction and so makes application to the court”.

At [29], Lord Bingham said that the court’s discretion must nevertheless be exercised judicially, with proper regard to the purpose for which the power to grant an injunction was conferred under section 187B of the 1990 Act –

“29.

The Court’s discretion to grant or withhold relief is not however unfettered … The discretion of the Court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court’s discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint … that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant.”

At [30] Lord Bingham said that the original jurisdiction conferred on this court under section 187B does not operate as an invitation to exercise those development control and enforcement decision making functions which are conferred on local planning authorities and the Secretary of State under the comprehensive statutory code enacted by the 1990 Act –

“30.

As shown above the 1990 Act, like its predecessors, allocates the control of development of land to democratically accountable bodies, local planning authorities and the Secretary of State. Issues of planning policy and judgment are within their exclusive purview. As Lord Scarman pointed out in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 141, "Parliament has provided a comprehensive code of planning control". In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23, paragraphs 48, 60, 75, 129, 132, 139-140, 159 the limited role of the court in the planning field is made very clear. An application by a local planning authority under section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton [1995] 3 PLR 8) that a local authority should have had different spending priorities. But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show. But all will depend on the particular facts, and the court must always, of course, act on evidence."

Lord Clyde expressed similar views in [67]-[68] of his concurring speech –

“67.

The principal theme in the appellants' argument as it seemed to me was the concern that the court should not trespass into areas with which it has no concern. I certainly accept that it is for the planning authorities and not for the courts to see to the preparation and administration of plans and policies for the use of land. What uses should or should not be allowed of lands within the area of the authority, what developments should or should not be permitted to take place upon such lands, are questions for the planning authorities and not for courts of law to resolve. The expression "planning matters" may be too uncertain a use of language in this context. I also find the expression "planning code" which was sometimes used in the argument lacking in precision. The expression "planning merits" seems to me to be more exact, but I would prefer to identify the forbidden ground as comprising matters of "planning judgment".

68.

The factors which require to be considered in the making of a planning judgment are potentially many and varied. They include matters relating to the economic and social needs of the locality, the interests of the public and of the individual members of it who live there, the preservation of the environment and the protection of amenity. Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at p 780H: "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State." The courts may consider the legality of a planning judgment but not the merits of the planning decision. In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 this distinction was recognised and held to be consistent with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. If the courts were to embark upon a reassessment of matters of planning judgment they would, to use the language of Lord Hoffmann in R v Wicks [1998] AC 92, at p 120F be subverting the whole scheme of the Act”.

Lord Clyde, however, warned against the court carrying that self-denying ordinance too far in exercising its original jurisdiction under section 187B of the 1990 Act –

“70.

But the enforcement of the planning decisions which have been reached by planning authorities does not in my view strictly involve the exercise of a planning judgment. The statutory provisions relating to enforcement are set out in a distinct part of the Town and Country Planning Act 1990, Part VII. They are in a broad sense "planning matters". Indeed the initiative to enforce planning control under these provisions lies with the authority. In deciding whether to take action in the event of a breach of planning control the authority will require to weigh a variety of factors which go beyond the considerations of the planning judgment in the light of which the plans were made and permissions granted or refused. The factors will now include the seriousness of the breach and its effect in the particular case. The authority will also require to consider which of the various methods of enforcement provided by the statute they should adopt. Enforcement notices and stop notices are courses which the authority may take at their own hand. So also is the breach of condition notice introduced by section 187A. But the injunction provided for by section 187B requires the intervention of the court. Parliament has expressly given the power to grant this particular form of remedy to the court. The authority must decide that the course is "necessary or expedient", but it is for the court, not for them, to issue the order.

71.

In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed with the authority the court is not embarking upon a reassessment of what was decided as matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction”.

In his concurring speech at [98], Lord Scott drew attention to the words of section 187B(2) of the 1990 Act, which gives this court power to grant such an injunction as this court thinks “appropriate for the purpose of restraining the breach”. He said that this language neither added to nor subtracted from the criteria stated in section 37 of the Senior Courts Act 1981. Unless the injunction sought was “just and convenient”, it could hardly be thought “appropriate” to grant it. He continued at [99]-[101] –

“99.

The criteria that govern the grant by the court of the injunction make clear, in my opinion, that the court must take into account all or any circumstances of the case that bear upon the question whether the grant would be “just and convenient”. Of particular importance, of course, will be whether or not the local planning authority can establish not only that there is a current or apprehended breach of planning control but also that the ordinary statutory means of enforcement are not likely to be effective in preventing the breach or bringing it to an end. In a case in which the statutory procedure of enforcement notice, prosecution for non-compliance and exercise by the authority of such statutory self-help remedies as are available had not been tried and where there was no sufficient reason to assume that, if tried, they would not succeed in dealing with the breach, the local planning authority would be unlikely to succeed in persuading the court that the grant of an injunction would be just and convenient.

100.

In deciding whether or not to grant an injunction under section 187B the court does not turn itself into a tribunal to review the merits of the planning decisions that the authority, or the Secretary of State, has taken. The purpose of the injunction would be to restrain the alleged breach of planning controls and the court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions.

101.

It does not, however, follow that once the planning situation is clear and apparently final it is not open to the court to take into account the personal circumstances of the defendant and the hardship that may be caused if the planning controls are enforced by an injunction. Planning controls are imposed as a matter of public law. The local planning authority in seeking to enforce those controls is not enforcing any private rights of its own. If a local authority mortgagee is seeking an order for possession against the mortgagor, or a local authority landlord is seeking an order for possession against a tenant, or a local authority landowner is seeking an order to remove squatters or to restrain trespass, the local authority is seeking an order to enforce its private property rights. It is as well entitled to do so as is a private mortgagee, landlord or landowner. The function of the court in civil litigation of that character is, in my opinion, to give effect to the private rights that the local authority claimant is seeking to enforce. But an application for an injunction under section 187B, or any other application for an injunction in aid of the public law is different. As Lord Wilberforce said in the Gouriet case, the jurisdiction to grant such injunctions is one of great delicacy and to be used with caution”.

At [102] Lord Scott said –

“The hardship likely to be caused to a defendant by the grant of an injunction to enforce the public law will always, in my opinion, be relevant to the court’s decision whether or not to grant the injunction. In many, perhaps most, cases the hardship prayed in aid by the defendant will be of insufficient weight to counter balance a continued and persistent disobedience to the law. There is a strong general public interest that planning controls should be observed and, if not observed, enforced. But each case must depend upon its own circumstances”.

(5)

The provision of accommodation to asylum seekers

Sections 95 to 98 of the Immigration and Asylum 1999 [“the 1999 Act”] empower the Home Secretary to provide or to arrange the provision of support, including temporary support, for asylum seekers and their dependants who appear to her to be destitute or likely to become so. For these purposes, an asylum seeker is a person aged 18 or above who has made a claim for asylum in the United Kingdom which has been recorded but not yet determined. A claim for asylum means a claim that it would be contrary to the United Kingdom’s obligations under the Refugee Convention or Article 3 of the European Convention of Human Rights for the claimant to be removed from or required to leave the United Kingdom: see section 94(1) of the 1999 Act. Destitution is defined by section 95(3) of the 1999 Act to include the lack of adequate accommodation or the means of obtaining it.

By virtue of section 96 of the 1999 Act, the Home Secretary may provide support to an asylum seeker in the exercise of her powers under section 95(1) -

Pending a decision whether to provide such support, the Home Secretary has power under section 98 of the 1999 Act to provide temporary accommodation to asylum seekers who appear to her to be destitute.

The effect of regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005 is to convert the Home Secretary’s powers to provide support to asylum seekers under sections 95 and 98 of the 1999 Act into duties to offer such support –