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

Since May 2020, there have been three periods during which the Bell has been used to provide accommodation for asylum seekers. The first was a period of some nine months between May 2020 and March 2021. The second was a period of some 18 months between October 2022 and April 2024. The third period of use for that purpose began in early April 2025 and continues. During each of those periods, the Claimant as local planning authority has known that the Bell was being so used. The contemporary evidence shows that, at least since late 2022, the Claimant has considered that the use of the Bell for that purpose constitutes a material change in its use and requires planning permission.

Prior to the bringing of this application for an injunction on 11 August 2025, the Claimant as local planning authority has not taken enforcement action against the use of the Bell to provide accommodation for asylum seekers. I attach no significance to the lack of enforcement action during the period of use between May 2020 and March 2021, since during the period of the Covid-19 pandemic local planning authorities were encouraged to exercise their discretion in taking enforcement action which might hinder an effective response to the pandemic. I accept Mr Stubbs’ evidence that the Claimant is likely to have been reluctant to enforce against residential uses in any event during that period.

However, it is clear that when use of the Bell to accommodate asylum seekers resumed from late October 2022, the Claimant was in a position to take enforcement action. Instead the Claimant’s response was to invite the Defendant to submit an application for retrospective planning permission to use the Bell for that purpose for a temporary period until June 2024. The Defendant made that application in February 2023. The application remained with the Defendant undetermined until March 2024, at which point the Defendant withdrew it, informing the Claimant that the then current contract to accommodate asylum seekers at the Bell was to end in late April 2024. When the Defendant submitted the planning application in February 2023, it was made clear to the Claimant that the Defendant did not accept that use of the Bell on a temporary basis to accommodate asylum seekers constituted a material change in its use as a hotel.

From late February 2025 onwards, the Claimant was aware from discussions with the Home Office that the Home Secretary was proposing to commission CTM to seek a new contract with the Defendant to resume the use of the Bell to provide contingency accommodation for asylum seekers. The Claimant was made aware that the Home Secretary proposed to do so in order to meet what she considered to be the pressing need for such accommodation for the purpose of fulfilling her statutory responsibilities under the 1999 Act. Although in the consultation response on 17 March 2025 the Claimant raised a number of objections to the resumption of use of the Bell for that purpose, it did not do so on planning grounds.

On the evidence before the court, it had been the Claimant’s assessment as local planning authority both when the Bell began to be used to accommodate asylum seekers in late 2022 and again on resumption of that use in early April 2025, that it was in breach of planning control. Upon resumption of that use, Mr Stubbs and his colleagues had been active in considering whether some form of enforcement action was justified from early April 2025 onwards. Insofar as the local planning authority articulated a judgment as to whether such action was necessary or expedient, it is to be found in the observations of Mr Stubbs in his email of 17 April 2025 to Ms Thompson, that counselled against resorting to the peremptory remedy of serving a stop notice at that time, given the impact which such a notice would have in requiring asylum seekers now accommodated at the Bell to be rehoused elsewhere “and all the consequences of that”.

Instead, the Claimant followed the same approach as had been taken in late 2022, and asked the Defendant to apply for temporary planning permission to regularise the use of the Bell. The Defendant informed the Claimant that it would so apply, but on 15 May 2025 Mr Salmon informed Mr Stubbs that the Defendant had been instructed not to make that planning application, as the Bell remained in use as an “exclusive use hotel”.

Mr Stubbs’ evidence was that following receipt of Mr Salmon’s email of 15 May 2025, the Claimant as local planning authority made a conscious decision not to take enforcement action at that time. Instead, the local planning authority would monitor the situation.

There is no evidence to suggest the arrangements for the current use of the Bell as contingency accommodation for asylum seekers have changed in any significant way since May 2025. At that date, the Claimant was aware from recent correspondence between Mr Salmon and Mr Stubbs that the use of the Bell to accommodate asylum seekers was expected to be temporary. The Claimant was also aware that the current arrangements were for the exclusive use of the hotel premises for that purpose. For the time being, therefore, the Bell would not be available to provide visitor accommodation or a bar/restaurant or entertainment venue for use by the local community. The Claimant had been informed during the consultation process that the number of asylum seekers accommodated at the Bell would not exceed 160 residents; that those accommodated at the Bell would be single adult males; and that all residents would be required to register with local GP surgeries.

The Claimant was aware of the checks and security arrangements which would be in place on resumption of the use of the Bell as contingency accommodation. Ms Thompson told me that during the consultation process the Claimant had been provided with the Home Office’s information leaflet “Hotel Contingency Asylum Accommodation: Local Authority (February 2025)”. That leaflet provided local authorities with the following information –

“Security

Q: What checks are carried out on those arriving in the UK who end up in the hotel?

• Individuals arriving in small boats are taken to facilities in Dover to begin processing. Searches are undertaken at Western Jet Foil followed by robust security checks and biometric tests at Manston. This includes checks against UK and international police databases. An allocation policy and suitability criteria are applied to ensure that the choice of accommodation is suitable for the asylum seeker in question. Guidance on the suitability criteria used can be found on GOV.UK. Each person’s suitability will be assessed at regular intervals and if they are no longer considered suitable for any reason, they will be moved to alternative accommodation

Q: What additional security has been put in place at asylum hotels?

• The safety and security of the local communities in which hotels are located, the staff who work there, and the asylum-seekers staying there is of paramount importance, and on-site security staff monitor each hotel round the clock. Our accommodation providers are experienced and have robust policies and procedures in place around health and safety, security, safeguarding, and critical incident management. Security arrangements are kept under continual review and can be adapted at pace if required. Community Impacts

Q: What is the process for asylum seekers leaving hotels on a day-to-day basis?

• Asylum seekers at a hotel are not detained and are able to come and go. On arriving at the hotel, asylum seekers receive an induction about the accommodation and the local community. This will inform them of their responsibilities and what is expected of them as good neighbours. The contracted service provider is also responsible for running each accommodation site in an orderly and secure manner”.

Shortly after their occurrence, the Home Office had informed the Claimant of the fire incidents at the Phoenix in late March 2025 and at the Bell on 5 April 2025. The Claimant had been informed at the multi-disciplinary services meeting held on 8 April 2025 that both fires were suspected to have been set deliberately by an asylum seeker who had been resident at both hotels and had now been remanded into custody to face charges of arson.

In South Bucks, Simon Brown LJ said that in judging whether it was appropriate to grant the injunction sought to restrain a breach of planning control, the degree and flagrancy of the postulated breach may well prove critical. Where conventional enforcement measures have failed over a prolonged period the court may be more ready to use its own coercive powers to grant an injunction. Conversely, the court may be more reluctant where, as in the present case, enforcement action has never been taken.

That approach is reflected in the Claimant’s own policy on the circumstances in which it may resort to section 187B of the 1990 Act, in paragraphs 4.33 and 4.34 of its Local Enforcement Plan 2022 [“the Plan”] –

“4.33

Where an enforcement notice has not been complied with and, because of the special circumstances of the case, either direct action or prosecution would not be an effective remedy, we will consider applying to the Court for an Injunction under section 187B of the Town and Country Planning Act (as amended). An injunction can also be applied for if the breach of planning is so serious as to cause immediate harm to the amenities of the area or neighbours beyond which it would be reasonable to use the enforcement notice procedure to deal with.

4.34

An injunction can also be applied for where there is clear evidence that a breach of planning control is anticipated but has not actually occurred. Such action will only be considered if the breach, actual or anticipated, is particularly serious and is causing or likely to cause exceptional harm”.

The Plan reflects paragraph 050 of the Secretary of State for Housing, Communities and Local Government’s Planning Practice Guidance on Enforcement (Reference 17b-003-201403036) [“PPG”] –

“…a local planning authority can apply for an injunction whether or not it has exercised, or proposes to exercise, any of their other powers to enforce planning control. However, proceedings for an injunction are the most serious enforcement action that a local planning authority can take because if a person fails to comply with an injunction they can be committed to prison for contempt of court. Additionally, once an injunction has been granted, it cannot be discharged except where there has been a significant change of circumstances since the order was made. In these circumstances a local planning authority should generally only apply for an injunction as a last resort and only if there have been persistent breaches of planning control over long period and/or other enforcement options have been, or would be, ineffective. The Court is likely to expect the local planning authority to explain its reasons on this issue”.

As things stood at the time of the Legal Services Manager’s decision on 5 August 2025, this was far from being a case of last resort. On the contrary, the proposed application for an injunction was to be the first occasion on which the Claimant had resorted to formal enforcement action to regulate a use which they had long considered to be in breach of planning control, and the resumption of which they had been aware since early April 2025 at the latest. Nor was this a case in which the Claimant was contemplating enforcement action to avoid an anticipated breach of planning control which they judged as likely to cause exceptional or irremediable planning or environmental harm. On the Claimant’s own case, the actual breach of planning control had taken place months earlier, with the resumption of use of the Bell to provide accommodation for asylum seekers in early April 2025.

At [112] the Court of Appeal said –

That remains an accurate summary of the position in the light of the evidence now before this court.

As I have explained, the Defendant has been open and transparent in its actions and in its communications with the Claimant. It has maintained the position consistently that the temporary use of the Bell as accommodation for asylum seekers does not constitute a material change in the use of the hotel. Although I have concluded that the Claimant 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, it had not been thought expedient to enforce against it. That is hardly consistent with the Claimant’s contention before this court that the use of the Bell for that purpose constitutes a flagrant breach of planning control. Mr Salmon had made it quite clear to Mr Stubbs that a planning application would not now be forthcoming, because there was a real dispute as to whether the current use of the Bell was development requiring planning permission. This is not a case in which the breach of planning control is clear and beyond reasonable argument.

On the evidence, the Claimant had reached the view that use of the Bell in breach of planning control had resumed since early April 2025. Had the Claimant been of the view that the unauthorised use was causing or likely to cause unacceptable planning or environmental harm, let alone irreparable harm, it lay within its powers to take enforcement action. It chose not to do so. The characteristics of the use itself remained unchanged in any material respect between May 2025 and early August 2025. Nor is this a case where the local planning authority relies upon the unauthorised use being in contravention of a strong and locationally specific development control policy. Compare and contrast the position in Great Yarmouth Borough Council v Al-Abdin [2022] EWHC 3476 (KB) at [35] and [67].

For these reasons, I unhesitatingly reject Mr Coppel KC’s submission that in resuming the use of the Bell as contingency accommodation for asylum seekers and declining to submit a planning application for temporary use of the Bell for that purpose until March 2026, the Defendant has acted in flagrant breach of planning control.